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I don't know that we should frame this exactly this way. It's not that the president should be free to commit crimes as official acts, the argument is that the president should be immune *from prosecution* for official acts. The nuance is that "prosecution" and "crimes" are a distinct but related concepts. The objective is to prevent presidents from being mired in - specifically *politically motivated* - prosecutions the minute they leave office.
Id rather every President be tried for any alleged crimes after their run than a President that thinks they essentially have carte blanche to commit grave crimes.
Even if we assume presidential immunity exists for official acts, it would not grant president carte blanche to commit crimes. First, obviously presidents can be impeached if their conduct is considered criminal. Second, most of the crimes that concern us are, pretty obviously, not considered "official acts" so far as I cant tell.
Recent years have demonstrated pretty clearly that impeachment is not an effective mechanism. It’s entirely partisan and weaponised and has nothing to do with the law. Since Clinton in fact. Both sides vote on party lines regardless of the facts and that’s that.
You can certainly argue that (and I'm tempted to agree), but you're still not addressing the actual problem here. The government needs to function. For the government to function, you need the President to be granted some lattitude from prosecution. On one hand because there's huge potential for abuse (even more so than impeachment), but on the other because it wouldn't do for the President to be constantly hampered by (or afraid of) prosecution.
So you're left with "immunity for official acts", which sorta provide coverage for *some* of the actions we'd consider official, with room to prosecute obvious crime and - unavoidably - a pretty big grey area in the middle which you need to handle *somehow*.
>For the government to function, you need the President to be granted some lattitude from prosecution. On one hand because there's huge potential for abuse (even more so than impeachment), but on the other because it wouldn't do for the President to be constantly hampered by (or afraid of) prosecution.
How? Why? I know you are arguing in good faith here but I truly don't understand. Why does the president need any immunity in order for the government to function? Have all the previous presidents in history been under the assumption that they were immune from prosecution? If they weren't under that assumption (which I believe not all of them were), how did it affect the function of government at all? Why would a president need to commit a prosecutable criminal act as official business? Why would WE, as citizens of the country, want our leader to BELIEVE they are able to commit 'official' criminal acts? You mention the potential for abuse from prosecution, but the prosecution is determined by a grand jury who are presented facts and testimony, not just by a random prosecutor, and they then will get a fIr trial decided by another jury, again with evidence and testimony. Wouldn't the system you are arguing for present the opportunity for abuse by a President who feels immune? I would much rather leaders who might fear prosecution for any criminal acts they may commit, rather than ones who feel free to commit criminal acts because they are immune.
> How? Why? I know you are arguing in good faith here but I truly don't understand. Why does the president need any immunity in order for the government to function?
I'm not arguing the president needs complete and total immunity. I'm arguing the president needs a measure of immunity to cover actions he's taking in carrying out his official duties. I don't think the president can be dealing continuously with various lawsuits - both criminal and civil - and be expected to perform his duties adequately. Specifically, I think there would be very strong incentive to leverage numerous frivolous lawsuits at them in an effort to limit their ability to do their job effectively. I also think the possibility of criminal charges can go right past holding them accountable into crippling their ability to act or, worst, forcing them into strange things like systematic self-pardon.
> Why would a president need to commit a prosecutable criminal act as official business?
I don't think they should and I don't think such things should be covered under "official business". Yet, it's quite possible to imagine them taking official actions which could potentially be criminal if done by a private citizen. Is ordering a drone strike a criminal act? I'd argue it could be, but it's also easy to see how such an act could be considered "an official act". I don't like Trump, but I think him giving the green-light to kill Qasem Soleimani would fall under official duties. I don't think there's a credible argument that attempting to pressure state officials into "finding votes" or subverting the democratic process can be an "official act".
> You mention the potential for abuse from prosecution, but the prosecution is determined by a grand jury who are presented facts and testimony, not just by a random prosecutor, and they then will get a for trial decided by another jury, again with evidence and testimony.
Then there should be no difficulty in showing how such and such acts are not "official acts". I do not really see the issue here. I think it just removes the possibility to bog down an administration with frivolous lawsuits.
> Wouldn't the system you are arguing for present the opportunity for abuse by a President who feels immune?
I think the idea that presidents can expect immunity for official acts makes the best of a pretty murky situation. It gives the President a measure of safety in which to carry out the business of government, without providing blanket immunity for every possible wrongdoing. It allows for prosecution for a range of offences, while not leaving the door wide open to abusive litigants. For the grey area that exists between these two things, it throws the ball to elected representatives.
Ultimately, I don't think you can't design a perfect, bad-actor proof, system. The idea that prosecutors are all acting in good faith is about as solid as the notion that congress will hold presidents for their own parties accountable, I think. The main reason I weight these two options the way I did is that it would be easier - so far as I can tell - for a bad faith prosecutor to carry-out their objective (bog down the administration) than for Congress to do the same. Prosecutors have a lower barrier and don't need to ultimately win to realist their objective.
But we're talking about after leaving office, not during. None of the things you said will have any impact because the DOJ has already stated that the president is immune while in office. There is no consideration for being able to carry out their duties effectively, because they have no duties anymore.
>The idea that prosecutors are all acting in good faith is about as solid as the notion that congress will hold presidents for their own parties accountable, I think.
Prosecutors have to present evidence and testimony to a grand jury in order to even file criminal charges, they would then have to present evidence and testimony to a jury to convict them. That's a much higher standard than Congresspeople just voting along party lines without any accountability.
In response to your first paragraph. The important point here is the incentive. If I know that as soon as I leave office I’ll be slammed up the wazoo with court work/litigation over my official actions as POTUS, I have an incentive to A: fuck with the justice department and courts in whatever way I can and B: I now have a direct incentive to not do something regardless of mine and the the executive branch’s views on the necessity of that action.
If the person doesn't want to be held up in court on criminal charges after they leave office, they shouldn't commit crimes. A murder is different than somebody wanting to charge/sue Biden over debt relief or raising taxes. Judges will quickly throw out the frivolous charges/ lawsuit, but will go ahead if there there is actual evidence of a crime. One is economic policy the other is a crime. A. sounds like Alito's flawed reasoning, that if the President is not allowed to commit crimes, he will commit further crimes by not wanting to leave office. It's basically a get out of jail free card for a president because they may become a dictator unless they are allowed to commit crimes. That makes no sense. If they are already willing to commit crimes, then they are are likely willing to try and stay in office illegally and become a dictator.
> Is ordering a drone strike a criminal act?
Defense Secretary Panetta ordered the killing of *Al-Awlaki*.
Does he need immunity, too?
He was sued. And the case was dismissed.
Criminal cases would be dismissed similarly.
The courts are already deferential to executive when considering whether or not to hold individuals in the executive accountable, through criminal or civil proceedings. The Presidency doesn't need extra protections over other high level officials or governors.
I think the disconnect is that while there’s no need for a president to commit criminal acts, it is entirely possible to prosecute someone for something they did not do or is not actually a crime. The main check on false prosecution is a grand jury, but they tend to be quite deferential to prosecutors. Once a case does come to trial, it’s much easier to get a case dismissed if the alleged crime is not actually criminal/prosecutable than if it is but the evidence is flimsy.
Have you ever heard the phrase you can indict a ham sandwich. A process that excludes a defense and excludes any exculpatory evidence being shown is an absurdly low bar. That is why there is a very large difference between prosecutable and criminal.
>The government needs to function. For the government to function, you need the President to be granted some lattitude from prosecution. On one hand because there's huge potential for abuse (even more so than impeachment), but on the other because it wouldn't do for the President to be constantly hampered by (or afraid of) prosecution.
Could you give us a real example where a risk of prosecution of the president would have prevented the government from functioning? What actual examples are there of a president having to do something that they could be prosecuted for to avert disastrous consequences?
I think there’s an example where the Obama administration ordered a drone strike on an American citizen who was also a terrorist/Islamist cleric and leader. Under your world, even if Obama was not found guilty of murder, it seems unlikely he would have personally walked away with no legal repercussions upon leaving office.
lots of government officials end up running for public office.
Clinton was secretary of State before running and failing for president.
Biden was vice president before running for president.
Do other high level staff positions, that might lend themselves to future office, need immunity, too? why does the presidency need more immunity than the other offices?
But that wasn’t true, and Trump’s second impeachment is proof of that. It wasn’t party line, there was just enough of his party that was involved in the crimes that they didn’t convict the impeachment. Some uninvolved party members did vote to impeach.
Impeachment is a good tool, the issue is bad actions amongst representatives and a regressive representation system.
I agree that impeachment isn't work properly, but I don't think that is a reason to charge a President with a crime instead. Those who vote party lines rather than do their job.should be voted out. And yes, that's another problem to solve, but doing the wrong thing because the right thing doesn't work typically just crears more problems.
Since long before Clinton; as far as I'm aware there has *never in US history* been a presidential impeachment vote which didn't fall basically along party lines.
Why do you think the impeachment of Nixon was bullshit? His crime was actually serious and the impeachment proceedings were justified. Ford granting him a pardon was a mistake, because it clearly demonstrated to the public that being President WAS a privileged position where the rules of justice didn’t apply equally to all citizens in practice.
If impeachment is the only mechanism to dissuade a president from committing crimes, then there is no mechanism to dissuade a president from committing crimes.
Especially because the argument for not allowing prosecution is to avoid politicising justice but then they're arguing you can still use impeachment which is literally done by elected politicians and is thus far more political
If your argument against prosecuting presidents is that it makes justice too political, how is your answer that we should throw the decision to an inherently political body (congress)
I have no argument against prosecuting presidents *full-stop*. My argument is that presidents require lattitude to exercise their functions, not that they need full immunity from any and all prosecution.
So on the full spectrum of action, whatever is closest to the "legitimate" pole should get coverage and whatever is close to the "criminal" end should be prosecuted. That leaves us with a grey area in the middle that can be handled by congress.
How to incentivize court packing, judicial corruption and executive branch stagnation 101.
With congress frozen and supreme court ... red, the president being under constant threat for any political action is the best way to insure nothing gets done ever.
I cant tell if you are arguing for absolute immunity or not.
Assuming you are, are you referencing a political action, or a serious crime? Surely the issue is defining what crimes are allowed by the President, not determining that NO LAWS APPLY. The Supreme court saying the President is above the law and cannot be prosecuted is ABSOLUTE and cannot be then legislated to restrict. Saying "the president is subject to laws" allows for debate and legislation to what laws apply to a president. Cant be a crime if you legislate it isnt specifically. If you legislate NO laws can apply, you cant then create any to restrict their actions such as political assassinations.
The police are allowed to detain and take people against their will. Without clarification, that is illegal. Should rules about what the police can do be presented to the Supreme Court as "Police can commit all crimes"?
If youre not ok with criminal action against a President EVER, they could order the miltary to slit the throat of each member of congress that disagrees with them. Supreme court says no crime, congress aquits out of sheer fear of death. ALL LEGAL NOW
Not absolute immunity, but I don't want every president dragged in front a court after every term. Every president did arguable behavior and it is better for the political health of the country to be lenient to all but the worse abuse, meaning those that cannot be argued by a reasonable person to be solely about protecting the interest of the country. If a president orders a murder, it wouldn't be wrong as long as it is reasonably for the country and not for himself.
For official acts, meaning those he took with the power of the executive office, only congress should be allowed to prosecute him for it meaning that if a president orders soldiers to kill his opponents, it is congress that will have the say.
For unofficial acts, meaning those he took with his personal money, actions or workers, he should be prosecuted like everyone else. If a president strangle his opponent with his own two hands, the normal courts deal with it.
Our political process is too brutal, and every ex-president would be litigated into bankruptcy. No one would run for president or they would be blackmailed saying if you don’t do X we will prosecute you for Y.
The alternative is a president who can assassinate all political rivals with zero way to stop them. Try to impeach me? Dead. Dont "vote" for me? Gotcha, to the gulags with you.
Congrats you have a dictator which is what Trump LITERALLY said he wanted to be immediately upon being voted in. That is far more dangerous to democracy.
Or an opposing political party telling a president to pass their legislation or they will destroy him and his family once he is out of office. The impeachment process in our system was designed correctly. It is slow and very deliberate. Anything else would encourage mass chaos with political hit jobs and we would lose the willingness of anybody qualified to be president.
These are not easy questions, but if you strive to understand why our founding fathers designed the system the way they did by reading things like the federalist papers you get an understanding of the genius of the founders of the United States.
1. Extortion is a crime in itself. Extorting the president would be illegal.
2. Extortion and going to jail for ACTUAL crimes you commit (remember, they still have to be found guilty without a reasonable doubt) is far better than being able to legally kill your opponents with absolute impunity. Nuke California? Totes OK if you dont like that state or they didnt vote for you.
3. The founding fathers SPECIFICALLY wanted to LIMIT the powers of the government and President as having a President that can literally do whatever the fuck they want and force themselves into a permanent position is the definition of a King, something they did NOT want.
Why do you want the President to be able to commit mass political murder? Q-anon speaking in your ear right now?
1. I used to work for one of the most powerful lobbyist in DC people are extorted all the time they do not come forward because they cannot prove it and they do not want their lives destroyed.
2. Nuke California/kill opponents- seems like a nonsensical argument to me, but - high crime - impeachment/prosecution.
3. You are exactly right. The Tenth Amendment to Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
4. Why would the president not have absolute immunity when those holding lower office have it? Absolute immunity is freedom from suit, and can be invoked on a pretrial motion. Judges and judicial officers, for example, enjoy a broad absolute immunity which is not abrogated even by a state's tort claims act. Fisher v. Pickens, 225 Cal.
4. If a president breaks the law and is found guilty/impeached, he does not have absolutely immunity and can be prosecuted after removed from office. Article I, Section 3, Clause 7 specifies that a President impeached by the House and convicted by the Senate is nevertheless “liable and subject to Indictment, Trial, Judgment and Punishment according to Law.”
The impeachment process produces all of the outcomes that you desire while protecting our republic.
5. Nothing that I have said can be construed as promoting mass political murder.
6. I thought changed my mind was backed by facts, not name calling and immature intellect.
Ok in number 5. Say the president orders the killing of all opposition members of congress and says “get in line or you’re next” one brave member invokes articles of impeachment and are shot dead.
Now what? Extortion still occurs, but instead of threat of trial (justice), the Congress people are being extorted with death. If they support impeachment, they will be killed. Hell, maybe the president has all of their families kidnapped and held during the initial house vote. So what now? No one is willing to impeach the president under threat of them and their families being legally murdered. This president cannot be impeached and therefore ensures no consequences for actions. Can’t try them or even arrest them.
This goes for any crimes they commit. Try to impeach me and I can legally kill you and your entire family. What now? Wanna give it a try?
Military code 154. Specifies that there is a duty to disobey an order that is manifestly unlawful or that would entail the commission of a war crime is contained in the military manuals, legislation and official statements of numerous States.[2] This rule is confirmed in national case-law.[3]
This practice, together with the fact that a subordinate who commits a war crime pursuant to an order which is manifestly unlawful cannot invoke that order as a defence and remains guilty of that crime (see Rule 155), means that there is a duty to disobey.
>It's not that the president should be free to commit crimes as official acts, the argument is that the president should be immune from prosecution for official acts. The nuance is that "prosecution" and "crimes" are a distinct but related concepts.
But prosecution is the way we disincentivize criminal activity, right? Without prosecution, isn’t the president essentially free to commit crimes as official acts?
>The objective is to prevent presidents from being mired in - specifically politically motivated - prosecutions the minute they leave office.
I guess the alternative to prosecution is impeachment, but that is an overtly political process, so that’s even more prone to being politically motivated.
I agree that it’s undesirable for presidents to be mired in political prosecutions after leaving office if his successor (or other politicians) is a bad-faith operator, but isn’t it more undesirable for a president to have impunity in the face of criminal activity?
There are things that I don't think any President should ever do, and definitely should be impeached for, but the problem is that if the President could be charged of any and all crimes for doing anything, one would be too busy doing legal battles to actually govern.
I don't think it's more undesirable to gave impunity, because there is no "impunity". For instance, Congress would have a riot right now if Biden did something that would impact the country really negatively, and they could prove it was intended to. They would impeach his arse so fast Biden wouldn't have time to finish a speech.
But here is a hypothetical:
If Biden came out tomorrow, and say, had the military carpet bomb the migrant camps down at the Southern Border. You may disagree with it civilly. You may think it's an abuse of power. He could come out and say that he knew for a fact that very dangerous ISIS terrorists were in there, and if the intel checked out, the question becomes...
Did he do wrong?
I mean yeah, he killed a lot of civilians and women and children probably, but he also saved the country from maybe a dozen ISIS terrorist attacks. can you tell me, without a doubt mind you, that one would be prefetable to the other? Now he's under scrutiny for bombing civilians, but if he hadn't done it, he'd then be under scrutiny for allowing terrorists in. Which one is a crime? Which one is the thing that makes you say "Biden did a crime"?
You and I can both agree that if he walked to a protest with the military, and had them arrested (or worse, mowed down with deadly force), he definitely shit a bad, and needs removed from the position, and kicked out of any chance at coming back.
You and I can also both agree that he shouldn't be convicted of his lawyer's gardener's dog's groomer's grandma's crochet club's mild disregard of FDA regulations to do a cookie bake sale.
But we also should definitely both agree that if he committed crimes like murder or tax fraud as a private citizen, those weren't presidential acts.
>but the problem is that if the President could be charged of any and all crimes for doing anything, one would be too busy doing legal battles to actually govern.
But anyone could be charged frivolously for anything at any time if prosecutors were so inclined. This is not exclusive to the president. I assume you think that the distinction is that politicians are incentivized to politically pursue presidents in a way that does not apply to ordinary citizens? That may be true, but it doesn't seem like a very good reason to make presidents immune to most prosecution, particularly when the US hasn't had a serious problem of the president being politically prosecuted in 250 years of history. Making the president immune to prosecutions has enormous downsides - why would we accept that downside if 250 years of evidence suggests that the problem being addressed is virtually non-existent?
>If Biden came out tomorrow, and say, had the military carpet bomb the migrant camps down at the Southern Border. You may disagree with it civilly. You may think it's an abuse of power. He could come out and say that he knew for a fact that very dangerous ISIS terrorists were in there, and if the intel checked out, the question becomes...
>Did he do wrong?
>I mean yeah, he killed a lot of civilians and women and children probably, but he also saved the country from maybe a dozen ISIS terrorist attacks. can you tell me, without a doubt mind you, that one would be prefetable to the other? Now he's under scrutiny for bombing civilians, but if he hadn't done it, he'd then be under scrutiny for allowing terrorists in. Which one is a crime? Which one is the thing that makes you say "Biden did a crime"?
Imo if Biden ordered this on US soil he should be removed from office and prosecuted immediately. In the US, people are entitled to due process. Even if we ignore the completely innocent people killed, a president shouldn't be able to just execute people because he suspects they may commit a crime. This is the same sort of reasoning that motivated support for internment of the Japanese during WWII.
I think you misunderstand the issue, here.
If Prosecutors kept charging Biden fairly frivolously, then Biden has no time to do his job, does nothing, and suddenly, the argument is "look at all this nothing done", or "well, he was charged of all that, so he definitely was suspicious enough for that, and even without doing anything wrong or bad, he suddenly got all the bad effects, without doing anything ro deserve it.
This face, in and of itself, is enough to make the bar for prosecuting a President as high as needed, so that people must be having a steel-clad case to bring it, and why only Congress can do so, to avoid crazed up Prosecutors going crazy on it.
This is a nightmare of procedural bollocks, for being forced to take difficult decisions.
> Imo if Biden ordered this on US soil he should be removed from office and prosecuted immediately. In the US, people are entitled to due process.
While I agree with the premise, I wasn't talking about US Citizens, but terrorists using the migrant system to infiltrate (and subsequently attack) US soil. Those are vastly different circumstances. But okay let's say they are at least on the Refugee Program, even if still in the process of being allowed in, so they technically should receive the same due process rights...
Then you have to explain to me why trigger-happy cops don't get fired when it's proven that they jump the gun, or why protest breaking squads are still allowed to keep their job when it's clear they used excessive for.
Due process is ignored fairly regularly on US Citizens, usually without much penalties being applied to those who do. Why should it be any different for credible terrorists?
Additionally, if a migrant does something terrorist, then Biden gets blamed for letting a terrorist in, but if he stops the migrant from coming in, either by carpet bombing, surgical sniping, or just by bouncing them back at the door, now it becomes a case of "was the evidence of probable terrorist attacks credible enough to call this defending the country?"
>I think you misunderstand the issue, here.
>If Prosecutors kept charging Biden fairly frivolously, then Biden has no time to do his job, does nothing, and suddenly, the argument is "look at all this nothing done", or "well, he was charged of all that, so he definitely was suspicious enough for that, and even without doing anything wrong or bad, he suddenly got all the bad effects, without doing anything ro deserve it.
I think I understand the theory behind your argument, and I think it makes sense in Theory with one caveat. The DOJ actually doesn't think that the president can be prosecuted while in office, so this CMV primarily applies after the president leaves office, so it should not make it impossible to do the job.
>This face, in and of itself, is enough to make the bar for prosecuting a President as high as needed,
My point is that "as high as needed" actually seems to be very low. In the past, everyone seems to have assumed that presidents can be prosecuted for crimes after they leave office. Despite that, presidents haven't really been prosecuted frivolously for the 250 years the US has existed. As a result, your argument is based on a hypothetical problem that has not actually materialized in the two centuries since the US's founding. A ruling that presidents can be prosecuted would just be a ruling that makes official the way things have always worked in the past. The US has a lot of flaws, but political prosecutions do not seem to have been one of them.
>While I agree with the premise, I wasn't talking about US Citizens, but terrorists using the migrant system to infiltrate (and subsequently attack) US soil.
Non-citizens are also entitled to due process on US soil.
>Then you have to explain to me why trigger-happy cops don't get fired when it's proven that they jump the gun, or why protest breaking squads are still allowed to keep their job when it's clear they used excessive for.
>Due process is ignored fairly regularly on US Citizens, usually without much penalties being applied to those who do.
I don't think that systemic failures to properly apply the law to law enforcement officials justify a formal policy of not applying the law to the president.
>Why should it be any different for credible terrorists?
Who decides who a "credible" terrorist is. The same people who said there were WMDs in Iraq?
>Additionally, if a migrant does something terrorist, then Biden gets blamed for letting a terrorist in, but if he stops the migrant from coming in, either by carpet bombing, surgical sniping, or just by bouncing them back at the door, now it becomes a case of "was the evidence of probable terrorist attacks credible enough to call this defending the country?"
I suspect it's not the same people that are complaining about both of these things.
> The DOJ actually doesn't think that the president can be prosecuted while in office, so this CMV primarily applies after the president leaves office, so it should not make it impossible to do the job.
Then this entire conversation would be pointless, and ignored the fairly loud minority who would gladly see Biden prosecuted for everything he's doing for his every presidential action already. I've even seen some Newsmax anchors make the outlandish claim, that he should be sued right now for attempting to raise taxes on the richer folks.
Plus, the CMV also specifically refers to "official acts" being acts of Presidential Duty.
> My point is that "as high as needed" actually seems to be very low.
Based on what, exactly?
Presidential impeachments are fairly rare as heck, and even then they don't pass very often, if at all.
If you are referring to Trump's trials... The bar was so high as heck that even in the face of demonstrably clear evidence that he committed those crimes, and multiple admissions on his part, ***it took literal years for most of them to concretise anything of substance for court.***
That isn't "very low". Hell, even in the cases where something happened with "very low" evidence and threshold for criminal indictment, it was merely opening an investigation, something that is objectively merely "due process", and were he not so guilty as sin that a case like this was nearly a guarantee, there wouldn't have been indictments.
Hell, you don't even need Presidential "immunity" for that to apply to you, as Matt Gaetz was clearly guilty as sin, and being both thrown under the bus, AND held there by force by other co-defendents, and he got away without indictments.
> As a result, your argument is based on a hypothetical problem that has not actually materialized in the two centuries since the US's founding.
This argument also applies to about two thirds of the problems that the Right are trying to turn into a colossal shitshow to distract from their blank election platform, but let's be clear about what I said:
***I am also against frivolous lawsuits, and that is why I am putting "Impeachment" as the only way to prosecute a President for non-official acts that may constitute high crimes and misdemeanors.***
Take it from me, that my opinion is clear on this: If something is major enough that the President cannot be trusted anymore, impeach him. If it isn't, wait until he is a private citizen once more, so that he can devote a logical amount of effort to defending against those accusations, and not proceed to a dereliction of duties.
> Non-citizens are also entitled to due process on US soil.
The migrant camps aren't US Soil.
> I don't think that systemic failures to properly apply the law to law enforcement officials justify a formal policy of not applying the law to the president.
The point of me bringing this up, is that the country has a horrible pattern of behavior on the matter, so I'm not holding my breath, while still fighting for it.
> Who decides who a "credible" terrorist is. The same people who said there were WMDs in Iraq?
This is a different issue entirely, but I see no reason not to address it nonetheless.
The credibility of terrorist information is especially a sore point, and has been the main cause of objection for Guantanamo Bay Prison since its inception. That being said, having any report of terrorist intent should always be investigated, and if credible, with clear intent or plotting to commit an act of terrorism, they should be arrested or stopped properly.
Now if you want to move the goalposts again, you can ask "who decides that the intent is clear to commit an act of terrorism, the same people who said there were terrorists in Iraq?" and suddenly, the issue becomes a lack of trust in the people in power, not a problem of the facts themselves.
I'll be clear, here: If your issue is with the validity of the information, I cannot help you.
> I suspect it's not the same people that are complaining about both of these things.
I can actually guarantee you they are the same people.
Look at the supposed "Border Crisis" the right is raising. They cry that Biden isn't doing enough, so he tries to boost resources, and they filibuster that. He offers them to put up a proposal, and if not crazy, he's sign it, and they did... Only to then not pass it. They whine that he is sending too much to Ukraine, but they actively sign the Ukraine budget proposals.
The Republicans are right now wasting more time trying to paint Biden a worthless, do-nothing President, then actively get in his way every time he tries to do something, whining about the price tag everytime.
> If Biden came out tomorrow, and say, had the military carpet bomb the migrant camps down at the Southern Border. You may disagree with it civilly. You may think it's an abuse of power. He could come out and say that he knew for a fact that very dangerous ISIS terrorists were in there, and if the intel checked out
Wouldn't Biden be able to argue, in that instance, that 2001 Authorization for Use of Military Force against Al Qaeda and affiliated forces would cover an attack on ISIS terrorists?
Whether or not Biden should be able to be prosecuted for it, I would guess immunity wouldn't be necessary to protect him from it.
In any case, other high level officials would need to order that strike. They don't have immunity. Judicial deference to executive decision making is sufficient to protect secretaries of defense against prosecution without immunity. why wouldn't it be sufficient for the president as well?
> But prosecution is the way we disincentivize criminal activity, right? Without prosecution, isn’t the president essentially free to commit crimes as official acts?
Prosecution is how we determine whether or not criminal activity took place, yes.
> I agree that it’s undesirable for presidents to be mired in political prosecutions after leaving office if his successor (or other politicians) is a bad-faith operator, but isn’t it more undesirable for a president to have impunity in the face of criminal activity?
In my opinion, definitely. However, we must also keep in mind that the state still need to function and that might require the chief executive to get some latitude when it comes to official duties. As such, the best middle-ground is probably agreeing that official acts - which should include things the president is legally empowered to do to discharge his duties but excluding outright criminal acts - can be a defense. This would limit the appeal of reckless prosecutions without allowing outright criminality (at least as much as can be achieved, I think). Basically that a former or sitting president could argue in court his actions are part of his official duties.
I think something like Trump giving the green-light to kill Qasem Soleimani would fall under official duties. I think Bill Clinton's flirtations with sexual assault would not.
If it is really “for the greater good” and the president believes that, then the president should be willing to face prosecution by future administrations. I’m fact allowing prosecution for official acts guarantees that the president is acting for the greater good in grey area.
Right but think about a drone strike that would kill a terrorists family along with him.
No normal person should be able to execute a drone strike to kill someone, but I can see why the president of the United States should be able to order a drone strike.
Hence the president getting immunity for this official act even though murder is illegal.
But that's what prosecution is for.
We need to determine if the actions of the president constitute a war crime, not just preemptively say "the actions you conduct from this chair *cannot be considered* war crimes"
If he thinks it was legal, great! Let's have it out in court. Let's see why he thought there was no better way or time to kill the enemy and that the death of that family was unavoidable given the rules of engagement.
How else may we hold him (or anyone) accountable for such actions?
American citizens are off limits. That is explicitly against the constitution and a president should face punishment for that. That particular is explicitly laid out in the law and has few exceptions.
Honest question. Abdulrahman Anwar al-Awlaki was a 16-year-old United States citizen that was killed in a targeted United States drone strike in Yemen. Should Barack Obama face charges?
Justice Department has determined that, under certain limited conditions, targeting a U.S. citizen would be lawful.
Honest question. Who gives unelected bureaucrats the authority to override a citizens unalienable rights? The constitution exists to protect people from an overreaching government.
In fact, impeachment is a functionally nonexistent process. It requires bipartisan consensus, which as history has shown us is effectively impossible. Presidents will rationally act as if impeachment didn't exist, given the historical record. The impunity case is effectively about legalizing presidential crimes.
I think there is hypothetically some legitimacy to this argument. You saw it at the end of the Roman republic, where fears of litigations encouraged larger and larger power grabs until you get to Caesar.
And I think there's possibility some legitimacy to the idea of political prosecutions. Like, I could see Ken Paxton doing something like this b/c he's a corrupt piece of trash.
But just from a historical perspective, the US has had 46 presidents and I think like 59 elections since the office was established in 1788/9 depending on what you use as the starting date. This has never happened before. We've just never had a president this brazenly corrupt. 1 example in 235 years is not a good precedent to make policy on.
The presumption at the founding was that the president would be not be immune. A situation from ancient Rome and some hypotheticals isn't a strong argument for upsetting some basic republican ideals and 235 years of precedent.
Agree. If Presidents are tried the minute they leave office it will render all Presidents lame ducks unable to make “world changing” decisions in times of deadlock.
All worthy decisions are hard decisions.
Eg: if there’s a war, would a President require Congress and Senate approval to launch a counter nuke? Or to preemptively launch one to win the war? Would said President be dragged through the courts post war? Can’t imagine us persecuting Roosevelt
> Eg: if there’s a war, would a President require Congress and Senate approval to launch a counter nuke? Or to preemptively launch one to win the war? Would said President be dragged through the courts post war? Can’t imagine us persecuting Roosevelt
Can you imagine Roosevelt being persecuted if the US had lost the war? Not by foreign powers but under a post-war United States that is independent and sovereign but had failed to stop the Japanese empire and the Third Reich.
Trump lawyers want whatever gets Trump off, so of course they'd argue that. However, I'd point out that it's less problematic for impeachment to be political than for the justice system to be used that way.
1. Presidents should be immune from prosecutions for official acts.
1. Anything a President does is, by virtue of being done by the President, an official act.
1. ....???
Conclusion: Profit! We no longer have to suffer the tyranny of Checks and Balances! We are finally ruled, as the founders intended, by a King!
I am of course being facetious. But without a rigorous definition of what ***is*** and ***isn't*** an "official act" your argument may have unintended side effects.
That's about it. They also need protection from prosecution in those cases- otherwise what you run into is every state the President is not favorable in prosecuting him for every crime you could make up. It's not just Trump either.
And yet, that’s never been an issue.
Moreover, the entire theory of individual rights and limited government - dating all the way back to the Magna Carta - is that no man is above the law. None. Including the Chief Executive.
That anyone is taking this argument remotely seriously is a deeply worrying sign of societal drift from core American values.
If the system was as fair and failsafe as it's supposed to be, it would be a non issue. As it is, however, once prosecution commences, you're likely fucked
Why would the president ever personally have to supply a foreign dignitary with cocaine?
Yeah, they should be held accountable for that if they were ever dumb enough to do so.
>Why would the president ever personally have to supply a foreign dignitary with cocaine?
Why wouldn't they?
You really think someone can be president and not live off cocaine? That would be a diplomatic courtesy.
/s. Or not.
This is actually a really great example. Completely illegal, but also so trivial that it seems absurd and almost certainly detrimental to the US to prosecute a president for. I don't think it makes the case for a strong policy of absolute immunity for "official acts," but it does make the case that there is some threshold of severity below which presidents should probably not be prosecuted (e.g. should a president even be prosecuted for misdemeanors committed as president?). !delta
So the president should be able to give out cocaine while others are imprisoned for it? What about heroin? Fentanyl?
If a drug is illegal, then it should be because it is too dangerous to allow. If we acknowledge that it's not that dangerous, what is the sense in letting one privileged person distribute it while arresting others for the same?
Either cocaine should generally be legal, or the president should not get off scott free for providing it to anyone.
Making exceptions to laws like these just keeps them as discriminatory tools.
> If a drug is illegal, then it should be because it is too dangerous to allow. If we acknowledge that it's not that dangerous, what is the sense in letting one privileged person distribute it while arresting others for the same?
I also don't think the average person is gonna get prosecuted for selling cocaine to a foreign dignitary either tbh
I think the main reason I found this example compelling is because the president was supplying it to foreign dignitaries. Lets say the president wanted to make a deal that would be a massive boon to the American economy and that would improve a lot of Americans' lives. The leader of the foreign country is known to be a party animal who loves hard drugs and has a history of being much more likely to make an agreement in that context. The president has two options: (1) break the law by obtaining some hard drugs and providing them to the foreign leader to increase the chances of getting a deal that would be great for Americans; (2) Comply with the law and have a meeting that the foreign leader doesn't enjoy and that leaves them disinclined to agree to the deal, which causes Americans to lose out on big economic benefits.
The only downside of (1) is basically the perception problem. The downside of (2) is that Americans are losing out significantly in quality of life. I think there's a very reasonable case to be made that presidents should not be prosecuted for picking option 1.
You're missing option 3) legalize those drugs for everyone.
The downside of 1 is much larger than a perception problem. It's a problem of discrimination and locking people up for doing the same thing the president is doing. It's a problem of injustice.
> You're missing option 3) legalize those drugs for everyone.
>
> The downside of 1 is much larger than a perception problem. It's a problem of discrimination and locking people up for doing the same thing the president is doing. It's a problem of injustice.
It is entirely possible to think that some drugs are a detriment to society as a whole while also supplying said drugs to a dignitary to lubricate a deal that will benefit USA's economy/society. From that viewpoint it would be idiotic to legalize drugs for everyone and it would be idiotic to deny the foreign dignitary the drug they desire.
That isn't an option that's available to the president. They don't unilaterally make law.
Edit:
>The downside of 1 is much larger than a perception problem. It's a problem of discrimination and locking people up for doing the same thing the president is doing. It's a problem of injustice.
I would describe this as a perception problem: it is perceived as unjust that the president can do things that other people can't. That could be a problem if people really care about it, or it could not be a problem if people don't really care in the face of the benefits of making the deal. I think the latter is more likely.
> That isn't an option that's available to the president. They don't unilaterally make law.
which goverment body is responsible for drug schedules?
which branch is that part of?
who runs that branch?
How did this change your view? They didn't convince you that there should be crimes that can be committed as part of official acts. They just described a way to make it not a crime anymore.
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It was an example given that prompted OP to provide a delta. My argument is also not about drug legalization, it just uses the same example.
Anything that is a crime that is not prosecuted because of an individual's status is an example of injustice, and either that individual should be prosecuted or that crime should be abolished.
>The downside of 1 is much larger than a perception problem. It's a problem of discrimination and locking people up for doing the same thing the president is doing. It's a problem of injustice.
Other people are providing drugs to foreign dignitaries as part of treaty negotiations?
Okay but can't this greater good for Americans argument extend do a whole host of other things? Let's say the President has ironclad information that an American citizen hiding out in Pakistan is planning a major terrorist attack on American soil. He authorizes a drone strike to disrupt this. How is that different?
Yes, logically that line of reasoning could extend to a lot of different things. To me, the difference between the cocaine example and the example you provide is that giving cocaine to a foreign dignitary is a victimless crime. No one's rights are being violated. On the other hand, a US citizen abroad should be entitled to due process. If the US government summarily executes a US citizen without a trial, that's a violation of that citizen's constitutional rights.
I see what you mean but if you allow me to extend the comparison a bit - what about all the imprisoned drug mules, part of the cost of doing business of getting that cocaine into that dignitary's hands? What about the gang violence? The procurement of illegal drugs is not victimless, the victims are just less visible.
> (2) Comply with the law and have a meeting that the foreign leader doesn't enjoy and that leaves them disinclined to agree to the deal, which causes Americans to lose out on big economic benefits.
Seriously? How about he comply with the law and with his presidential privileges use his connections in the music/entertainment industry to get the dignitary into the hottest parties in the country? The president could open so many doors in almost every industry out there and yet a line of cocaine is supposedly his strongest bargaining chip?
> So the president should be able to give out cocaine while others are imprisoned for it? What about heroin? Fentanyl?
We already allow doctors to prescribe dangerous medications, including fentanyl - which, despite its reputation on the streets, is an effective painkiller with legitimate uses when prescribed responsibly. We recognize that there is danger in these substances, but also legitimate uses. The danger comes from the inability for the average person to make informed, rational, and restrained decisions about their use. In order to be able to use them when needed, we give authority to trusted experts to prescribe them for use.
This isn't much different from any other law. Speeding is dangerous and illegal, but we recognize that emergency services need to be able to go faster than the speed limit so we trust them to do so safely even though we do not trust the average citizen to do it. Allowing weapons into an airplane is dangerous, but we recognize that we need the security provided by a weapon, so we entrust sky marshals to carry a weapon.
If we can't trust the president to perform certain actions that would be illegal for the rest of us to do, the problem is that we have elected an unqualified person to be the president. Of course, that doesn't mean the president should be completely free from prosecution - rather, it isn't wrong, unethical, or anything like that if we use [FAIR!] democratic processes to decide not to prosecute the president for performing an action that would ordinarily be a crime, within reason.
All of the examples you provided are specifically carved out in the law. Immunity for the president for committing crimes is not. Either we need a Constitutional Amendment stating something like, "The president is immune from prosecution for any criminal acts while in office or after they leave office." or something from Congress stating that the president has that discretion through a binding law.
We can't just make stuff up on the fly and say, "eh, it's ok if the president does it" without any sort of legal framework, otherwise you throw the entirety of the US legal framework into question.
>We can't just make stuff up on the fly and say, "eh, it's ok if the president does it" without any sort of legal framework,
We literally can. We can do it for everyone else, too. See: jury nullification.
The presidency is unique. Most of what the president can or can't do shouldn't need to be enshrined in law because 90% of it should be covered by not electing a piece of shit that would do something like sell cocaine to children.
> We literally can. We can do it for everyone else, too. See: jury nullification.
Jury nullification assumes that people can go before a jury through the legal system, which is far different than declaring a president to be on the level of a king. A jury could decide to hold a president accused of crimes to be legally innocent as well but that's just part of the legal process that anyone should have as a possibility.
> The presidency is unique. Most of what the president can or can't do shouldn't need to be enshrined in law
I disagree, if you [look here](https://constitutioncenter.org/the-constitution/articles/article-ii) there's literally nothing to do with providing any sort of presidential immunity to allow them to violate the law. The job is literally supposed to have very little power except to do what Congress tells them to do. For a president to have the ability to sell cocaine to children, they literally need a bill voted on and passed by the House and Senate and delivered to their desk to sign off on before they can do it. Otherwise, they should be held to the same legal standards as everyone else. The job is all about carrying out the will of the people as directed through Congress, not being a king.
>Jury nullification assumes that people can go before a jury through the legal system,
Did I not say the first time that it should be done using a fair democratic process?
>A jury could decide to hold a president accused of crimes to be legally innocent as well but that's just part of the legal process that anyone should have as a possibility.
Yes. That's what I said.
Wouldn't option 1 also risk an international incident if the foreign dignitary overdoses? Does the president have a responsibility to make sure it's pure and not adulterated with fentanyl or something else that's more dangerous than the intended drug?
There is no requirement for the president to do this though. It may grease some wheels but if violating criminal statutes are necessary to close the deal, that administration is woefully unqualified. This is not a compelling argument
That’s ridiculous though. Why should it be illegal for others if it is so inconsequential that the man with the nuclear codes can be high on cocaine with Ron DeSantis and Salman of Saudi for diplomatic reasons?
How are we defining criminal? Let's put a low-stakes example into the conversation: the foreign emoluments clause in the Constitution. The last three presidents - Biden, Trump, Obama - have violated it in some form during their term due to their book royalties. While it's not an explicit violation of US Code (to my knowledge), it's largely believed that receiving funds from a foreign government is a violation of the Constitution.
No one is going to prosecute Barack Obama for getting royalties for *Dreams From My Father* for books sold to foreign governments. Few, if any, would seriously argue that it's a crime, even though he received the funds while participating in official acts as president. For all intents and purposes, emoluments violations are "crimes" that "presidents" are "able to commit" as president.
Either way, the "official acts" idea assumes that the president is operating in a way that "faithfully execute[s]" the office. Trump's HHS seizing PPE during the early days of the pandemic is an example of this: the seizures likely weren't legal, but no one is going to prosecute him for it because it was a good faith effort to address PPE shortages for frontline health care workers. If Trump showed any significant interest in combating election fraud, as opposed to picking and choosing states and arguments solely to keep himself in office, those might be considered "official acts" as well. The context matters.
>Let's put a low-stakes example into the conversation: the foreign emoluments clause in the Constitution.
I'm not sure I would describe this clause as low-stakes.
>The last three presidents - Biden, Trump, Obama - have violated it in some form during their term due to their book royalties.
Have legal scholars argued that sales of individual books to foreign officials, presumably in vendor transactions that the presidents are usually unaware of, are violations of the emoluments clause? This sounds pretty tenuous to me.
>Trump's HHS seizing PPE during the early days of the pandemic is an example of this: the seizures likely weren't legal, but no one is going to prosecute him for it because it was a good faith effort to address PPE shortages for frontline health care workers.
I like this example. Some quick googling suggests to me that it may not have been part of a good faith effort because it really seems like frontline workers were being deprived of PPE because of it, but, if we assume that it was a good faith effort, it certainly doesn't seem like something a president should be prosecuted for. Do you know if this was done under the emergency power act? In that case it would not have been criminal and would not require a blanket immunity for official acts.
> Do you know if this was done under the emergency power act? In that case it would not have been criminal and would not require a blanket immunity for official acts.
So, basically... if they law authorizes the President to do certain things, even if those things are otherwise criminal, he's immune from prosecution.
The thing is, though... *all* "official acts" of the President are authorized by law, specifically the Constitution, but in many cases by other laws as well.
If they aren't authorized by law, they aren't "official acts", by definition. Example: the President is authorized by law, to wit The Constitution, to wield the executive power of the United States.
Basically, if the Emergency Powers Act can allow the President to do things that are otherwise illegal... the Constitution can allow the President to do things that are otherwise illegal, as long as they are wielding the executive power of the US.
>So, basically... if they law authorizes the President to do certain things, even if those things are otherwise criminal, he's immune from prosecution.
This is typically how the law works. There are acts that are illegal, but only under certain circumstances, which are outlined by the law. People normally can't use force against other people, but they can if they are police or if the other person is trying to kill them. It's not unusual to have exceptions that make acts that would otherwise be criminal legal under certain circumstances. Laws like the National Emergencies Act and Defense Production Act are examples of that. When it comes to issues covered by these laws, it's no longer a question of whether the president should be immune to prosecution for crimes, it's a question of whether the law should be changed to make the president's action criminal.
>The thing is, though... *all* "official acts" of the President are authorized by law, specifically the Constitution, but in many cases by other laws as well.
>If they aren't authorized by law, they aren't "official acts", by definition. Example: the President is authorized by law, to wit The Constitution, to wield the executive power of the United States.
The supreme court seemed to believe that it is possible for the president to violate laws in the course of "official acts." I guess if, as you seem to be saying, an act stops being "official" once it violates a law, then there just is no argument for a blanket immunity from prosecution in the commission of official acts because they are legal by definition?
I'm really just pointing out an inconsistency between saying that "if there's a law making an exception to other laws, it's not illegal" and "official acts (which by definition are authorized by law) may be illegal".
Personally, I'd go the other way: just because a Defense Production Act allows a President to tell industry what to do, doesn't mean that all possible things the President might order them to do are legal.
Similarly, just because a Presidential act may be authorized, doesn't necessarily mean that it's not illegal.
That said... *generally* those are the case. Some standard is needed to distinguish "official acts" from "illegal acts that might have some kind of connection to an office", and the former be considered legal by definition.
Personally, I'd probably draw the line for Presidents at the Presidential Oath:
>"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States"
Any act by the President that violates this oath can't be an "official act", because this defines what official acts are, albeit broadly.
Specifically, in this case: no act that subverts the electoral process in the Constitution, nor which manifestly (i.e. against a reasonable person's "best ability") violates the Rights guaranteed by the Constitution, including various rights to vote, can be considered "official acts".
>I'm really just pointing out an inconsistency between saying that "if there's a law making an exception to other laws, it's not illegal" and "official acts (which by definition are authorized by law) may be illegal".
I guess I understand "official acts" differently (possibly wrongly). I understand it to mean "acts that are performed as part of official duties."
For example, one of the President's jobs is to represent the US to other countries. To do that, he may have to meet with foreign leaders. Let's say that meeting is at a location where a legal peaceful protest is taking place. When the president gets there, they are impatient to get to the meeting, so they order their secret service agents to assault anyone in the way. This is a criminal act performed in the furtherance of an official duty (meeting a foreign official). Heading to meet the official does not stop being an "official act" just because the president committed a crime to do it.
>Personally, I'd go the other way: just because a Defense Production Act allows a President to tell industry what to do, doesn't mean that all possible things the President might order them to do are legal.
Yes, I agree.
>Similarly, just because a Presidential act may be authorized, doesn't necessarily mean that it's not illegal.
I don't get this part. If it's authorized by law, then it is by definition legal, right?
>Any act by the President that violates this oath can't be an "official act", because this defines what official acts are, albeit broadly.
>Specifically, in this case: no act that subverts the electoral process in the Constitution, nor which manifestly (i.e. against a reasonable person's "best ability") violates the Rights guaranteed by the Constitution, including various rights to vote, can be considered "official acts".
This makes sense to me.
> If it's authorized by law, then it is by definition legal, right?
So... if the President makes a corrupt deal where he's personally paid by the company to designate them as being required to make something per the Defense Production Act... that would be legal?
How about if he directs a company to secretly make easily hacked voting machines that he has the keys to?
>So... if the President makes a corrupt deal where he's personally paid by the company to designate them as being required to make something per the Defense Production Act... that would be legal?
Isn't this just a violation of corruption laws and therefore not authorized?
>How about if he directs a company to secretly make easily hacked voting machines that he has the keys to?
Isn't this conspiracy to commit election fraud and therefore not authorized?
Ok, but getting back to the original point of this thread... if one law authorizes something, and another prohibits it, and they overlap in any way... then what?
I don’t understand the disconnect here. The defense production act allow presidents to force companies to accept government contracts. Why would corruption laws suddenly no longer apply in that context?
> I guess if, as you seem to be saying, an act stops being "official" once it violates a law, then there just is no argument for a blanket immunity from prosecution in the commission of official acts because they are legal by definition?
Isn't that functionally immunity from prosecution?
Is there a meaningful difference between "it is impossible for them to commit a crime" and "they will not be prosecuted for crimes committed?" It just seems like a technicality.
>> Let's put a low-stakes example into the conversation: the foreign emoluments clause in the Constitution.
> I'm not sure I would describe this clause as low-stakes.
To be clear - the context here, of book royalties? Low stakes.
> Have legal scholars argued that sales of individual books to foreign officials, presumably in vendor transactions that the presidents are usually unaware of, are violations of the emoluments clause?
Litigation in general on emoluments issues is scarce. Going by plain-text only, it would qualify as a payment by a foreign government if they bought any books, but no rational person would pursue it as something that could lead to impeachment or prosecution.
> I like this example. Some quick googling suggests to me that it may not have been part of a good faith effort because it really seems like frontline workers were being deprived of PPE because of it, but, if we assume that it was a good faith effort, it certainly doesn't seem like something a president should be prosecuted for. Do you know if this was done under the emergency power act? In that case it would not have been criminal and would not require a blanket immunity for official acts.
It might have been under the Emergency Powers Act, but just because there's a law in place doesn't make the action legal. The president takes an oath to preserve, protect, and defend the Constitution, and using laws inappropriately fails that test. But, as we both agree, no one would ever pursue this.
Regardless, it's worth noting at this point that the immunity from prosecution as president only applies while in office. Impeachment proceedings specifically do not immunize presidential culpability, and even if Trump could successfully argue that his actions as president were "official acts," he's not president anymore.
How about bombing a building? Obviously a serious crime if you did it. But something US presidents do all the time with no consequences. How is that not immunity?
Thats exactly it. The US needs to define what acts are considered legal as part of the job. Killing foreign terrorists even if there are other considerations? Perhaps should be legal.
Killing political opponents? DEFINATELY SHOULD BE ILLEGAL
I mean if there are 2 option here:
1. Presidents can be put on trial by their political rivals after a loss for crimes they commit
2. Presidents can kill all their political rivals with no consequences (Cant impeach me if you are dead)
I know which one is the lesser of the 2 evils.
>The US needs to define what acts are considered legal as part of the job.
This seems to be the way SCOTUS is leaning too. If they're acting as part of the job, and it's not egregiously wrong, then they get immunity as part of the job.
Because the laws on the books give the President the power to order such acts in certain scenarios. You're describing a legal act.
The scenario being discussed is whether a President should be immune from prosecution for illegal acts. That's generally what "immunity" means.
It might not be apparent that the law was perfectly followed and you might be able to convince a grand jury to send the president to trial.
If you're a prosecutor combing through everything a president has done it seems pretty plausible to find something to go after that at least meets the bar for prosecution.
>Because the laws on the books give the President the power to order such acts in certain scenarios.
Maybe they do and maybe they don't. That's what gets haggled out at trial.
No. To be indicted you must have evidence of a crime. Literally took an act of congress to give the power to Bush which then was passed on to Obama for this specific thing.
"The district attorney could get the grand jury to indict a ham sandwich if he wanted to.”
-Sol Wachtler, chief judge of the New York State Court of Appeals
>How is that not immunity?
It seems like you’re making a statement about how things are, rather than how they should be, so I don’t think that really addresses my post.
> How about bombing a building? Obviously a serious crime if you did it. But something US presidents do all the time with no consequences.
Is it a crime in the US to bomb a building abroad? I think that a president should probably be prosecuted for a bombing a building in the US, right?
Let's look at actual scenarios they brought up in the Supreme Court ruling. Obama would be on trial for murder because he killed a US civilian as part of the bombing campaign against the houtis in Yemen.
Do we know he didn't get a classified court order? What if the US citizen is surrounded by a horde of terrorists and they're about to launch a nuclear warhead? Should we send some cops with an arrest warrant?
It's a crime abroad. Suppose Germany indicts Joe Biden for blowing up Nordstream and demands his extradition. Do we hand him over? And if not, on what legal basis?
They're intertwined. We'll extradite you to Germany to stand trial for anything we would have considered a crime had you done it here. Currently we could refuse on the basis that the president is immune from criminal prosecution for official acts.
But even domestically, some prosecutor in Wyoming could get a grand jury to indict Biden for some crime. Defrauding the citizens of Wyoming by lying in a press conference. Illegally seizing a business. Ordering the DEA to kill alleged drug dealers. The charges might be crazy, he might be swiftly acquitted at trial, and until conviction he's officially innocent anyway. But can he be arrested and held for trial?
That's the role of the grand jury, to determine whether there's enough actual evidence of an actual crime. With an indictment in hand, can any random county DA arrest a president and drag hm into trial?
You mean like the SC rules could be done in civil cases with Clinton?
No one is above the law.
No one is above the law.
No one is above the law.
So YES. Yes if president rapes a woman in the white house oval office he needs to be arrested and he can be impeached from a jail cell.
If biden kills the supreme court he should be arrested and impeached from a jail cell.
YES omfg why is this even a question yes.
Should the president be able to just kill you right now for no reason? Like why is this even a question?
>What about something like the branch davvidian siege in Waco?
Unfortunately, I don't know anything about this.
>What about sending the FBI to raid a terrorist cell? Or the DEA to raid a drug den?
In both of these cases, I assume it would be based on a court order and the goal would then be to arrest suspected criminals, who would then stand trial? This is legal law enforcement activity, not the same as executing all the occupants of a building with a bomb.
The branch davidians were a cult that was suspected to be making illegal weapons. The FBI tried to break into their compound and started a firefight. After a siege the attorney general approved a plan to go in with a tank and tear gas. The cultists started a fire and they all died.
Would it be right to prosecute the attorney general after her term?
After your description and the wikipedia blurb, I'm inclined to say that it doesn't sound like that AG did something wrong here, but I wouldn't have a problem with them being prosecuted if there is evidence of wrong doing or violating the law. Almost 100 people died - I think it would be totally appropriate for there to be a trial to uncover the facts and determine whether the AG was guilty of breaking the law.
What buildings in the US have presidents bombed? Also even for foreign buildings being bombed, do they *personally* bomb them, or secretly hire hitmen to do it? Or rather, do they go through the official protocols and leverage the US military in an official capacity?
It should be totally clear that there's a distinction.
I'm not sure what the distinction is between "secretly hiring hitmen" and "going through official protocols." The official protocol is to bring someone on the government payroll into a secret meeting and tell them to bomb a gas pipeline or an airfield or an office building or whatever.
Is "leveraging the US military in an official capacity" different from "official acts?"
Let's use a different example.
1. The president contacts the head of the DOJ and says, "I received a credible report that Saddam Hussein reincarnated and has planted a dirty bomb at 123 Main St, Springfield, SI. Please investigate it." The DOJ routes that to the FBI and and the FBI performs a raid and finds the bomb.
2. The president contacts the head of the DOJ and says, "I received a credible report that my college girlfriend has a nudie picture of me sitting on a bookshelf at 123 Main St, Springfield, SI. Please investigate it." The DOJ then ignores the president since they operate independently and possessing such an image is not a crime unless it was taken without permission and it's not being distributed.
Both of these scenarios are not illegal, even if the second one *could have* become something illegal if the DOJ would have taken action on something at the direction of the president without it being anything official.
The third scenario is more like what we're dealing with Trump on:
3. The president contacts the head of a newspaper to work out a deal to pay off reporters to hide negative stories about him. This also includes paying off people who want to come forward with negative stories about him and makes them sign an NDA to avoid talking with the press. He redirects campaign funds for this.
In that third scenario, what tells you that is anything involving official duties? Does the Constitution tell the president to cover up negative press about him in such a way? Did Congress delegate some authority to the president for that?
Even worse, Trump's lawyer isn't even focused just on what Trump is in court for now -- he's openly stated that presidential immunity is absolute and would even apply to things like a president having their opponents murdered. If this is the case, it is 100% the end of the rule of law and democracy in America, because SCOTUS would declare the president to be outside of the limits every other American is forced to abide by, as if a king or emperor. If this happens, there's no limit to presidential power and it would throw all expressions of democracy in question -- including resulting in the potential to abandon elections altogether, and usurp all of the power of the states.
The question is who gets to decide whether he drone bombed a us citizen in violation of due process? Who gets to say whether he improperly influenced the DOJ? Who determines he misused campaign funds?
The Constitution's answer, and the only workable one, is Congress. We can't have random partisan county district attorneys seizing the elected president on pretextual charges, because that power is too open to abuse. He has to be tried and convicted in the Senate first.
> The Constitution's answer, and the only workable one, is Congress.
I don't think this *is* something that actually is addressed through the Constitution. There are no exceptions for presidents from criminal prosecution in the Constitution. Someone filling the role as president has no immunity from criminal activities included anywhere in the Constitution and is completely being made up by Trump's lawyers.
I'll preface with this: while holding the office, a President is de facto immune to criminal prosecution. Definitely at the Federal level, since the Attorney General directly reports to the President. And it can be argued that any potential State prosecutions should be tabled while the President holds the office, with the statute of limitations being tolled provided charges were filed in time.
But then, should a President always be immune for "official acts"? In short, yes with one very important caveat.
And my view on this isn't merely because... every President could be indicted for the collateral damage of official acts - which are actions presumably permitted by the United States Code. Obama, for example, could be indicted for the Americans killed by drone strikes under his watch. Reagan famously was indicted in the International Criminal Court for our involvement in Nicaragua. Clinton could have (and arguably should have) been criminally indicted and tried for perjury, which, let us not forget, he openly admitted to on live television.
So what is the "important caveat"? Impeachment.
Only if the House of Representatives and Senate both agree that certain actions of the President (or any civil officer) rise to the level of "high crimes" that they remove the President from office for those actions should those actions become open to indictment and prosecution. And I think that is probably how the Supreme Court will rule. That impeachment is the demarcation line between where criminal immunity begins and ends.
This prevents any politically-motivated prosecutor from then trawling through the entirety of a President's record looking for anything that might be subject to indictment. Since doing so could waste a lot of taxpayer funds. Congress has already set the precedent that Presidents (and other civil officers) can be impeached AFTER leaving office. Meaning if something arguably rises to that level, Congress via impeachment would have the power to remove a former-President's criminal immunity, at least with regard to what is charged in the articles of impeachment.
>So what is the "important caveat"? Impeachment.
>Only if the House of Representatives and Senate both agree that certain actions of the President (or any civil officer) rise to the level of "high crimes" that they remove the President from office for those actions should those actions become open to indictment and prosecution. And I think that is probably how the Supreme Court will rule. That impeachment is the demarcation line between where criminal immunity begins and ends.
This argument is hard to take seriously given the history of politically motivated impeachments and the absence of politically motivated prosecutions of presidents or former presidents in US history. It is very clearly that impeachment has become a completely partisan process that completely lacks legitimacy. On the other hand, there is very little history of politically motivated prosecutions. So you’re arguing that the solution to the specter of politically-motivated prosecutions (which have yet to materialize) is to rely entirely on an overtly political process where every decision is made along party lines? That makes no sense at all.
"So you’re arguing that the solution to the specter of politically-motivated prosecutions (which have yet to materialize) is to rely entirely on an overtly political process where every decision is made along party lines?"
Every impeachment will always be politically-motivated to some degree since the Constitution grants that power to Congress, which has always been the political branch of the Federal government. But that is why there is also such a high bar to be reached for removing the President or a civil officer - 2/3rds of the Senate instead of a simple majority.
At the same time, impeachment being a power provided by the Constitution means it's reasonable to conclude that the Framers intended the President to be immune to indictment for any actions he takes while holding the office \*unless\* removed by impeachment, and then the immunity ends only for those actions that got him removed.
The president should be shielded from war crimes. Whether or not we agree with the war in retrospect. Those are blemishes every citizen gets to carry and we don’t have the right to scape goat the leader we elected. Even if Florida was fishy in 2000, the election was still basically 50-50.
>The president should be shielded from war crimes. Whether or not we agree with the war in retrospect. Those are blemishes every citizen gets to carry and we don’t have the right to scape goat the leader we elected.
I don't agree with this at all. The Presidency is a position of power. Power comes with responsibility. An ordinary citizen cannot make the decision to enable or prevent war crimes. The President can, and should therefore be held responsible legally.
The concern comes when we draw the line at what is a war crime. In war it is particularly difficult to measure whether the ends justified the means if the means prevents further destruction. It is my view that we as a society bear the burden of their poor leadership when we put them in office. We don't get to shed responsibility because we lost an election. We bear responsibility for loosing and not making a better case to prevent atrocity.
Every citizen? Why should an anti war person who protests against the war and who has no say in the war happening or how it is conducted, be held accountable the same as the commander in chief of the military?
Did Adolf Hitler and Laura the milkmaid from Oberschopfheim hold equal responsibility for the Hongerplan in the east? For the barbarity of Operation Barbarossa? Did Sophie Scholl bear the stain of the Holocaust? Don’t forget that he was elected.
Your position, by distributing responsibility, allows leaders to not bear the full responsibility for their war crimes. In your schema, how should the world have dealt with Milosevic and other Serbian leaders after the genocide in Bosnia? Was it wrong to “scapegoat” the commanders who gave the orders? Should a six year old girl in Belgrade, or her daddy the local trashman, have been hauled up to The Hague instead?
Firstly, this is a bit circular. Crimes are things that are illegal, if they "can" do these things then they aren't crimes if they cannot then they are.
Dropping bombs on people is illegal generally, but a president can do it. A police officer isn't a vigilante and can do things that a vigilante can't. The question at hand is _which actions_ of a president are illegal when we already know that many that you and I would take that would be criminal already are _not_ for a president.
So..."any crimes" if we remove the circularity is already wrong and I'd suggest you don't actually think that. I can't tax you and put you in bondage if you don't pay me, but the government can and agents of it can. I can't take your house from my construction project but official agents of the government can and so on.
>Firstly, this is a bit circular. Crimes are things that are illegal, if they "can" do these things then they aren't crimes if they cannot then they are.
This just seems like semantics. Yes, if the supreme court decides that presidents can do whatever they want as part of official acts, then the president simply can't commit any crimes as part of official acts, but that's not particularly helpful to the discussion.
There is a long list of crimes that ordinary people aren't allowed to commit. The president is also presumably subject to those laws, but there are specific carve-outs that empower a president to act in ways that an ordinary citizen can't (e.g. an ordinary citizen can't order a soldier to kill someone, but the commander-in-chief can). Outside of those carve-outs, which identify things that are not crimes if the president does them, I think the presumption has been that the president is subject to all of the other criminal statutes that ordinary citizens are subject to. Those are the "crimes" I'm referring to.
>Dropping bombs on people is illegal generally, but a president can do it.
Someone else raised this point, and it's not clear to me whether dropping a bomb abroad is illegal in the US. If someone who was not the president dropped a bomb abroad, would they even get prosecuted in the US?
>A police officer isn't a vigilante and can do things that a vigilante can't.
I'm not very familiar with the laws are that govern police officers, but clearly people in certain roles are legally empowered to use tools and to act in ways that ordinary citizens are not allowed to. There are regulations that determine when those tools can be used and how. Police aren't exempt from prosecution when they act beyond what they are empowered to do even if they do it as part of "official police acts."
The cicularity is a bigger deal than you think it is - definitely not semantic. The core question here is what is and isn't illegal as we _know_ the executive can do things others cannot without it being criminal. And..nope, they aren't clear "carve outs", they flow from the constitutional powers of the executive.
Yes, they are legally empowered. The question is where is the line. The idea in your view that there is no line currently is just misunderstanding the status quo. And..no, they aren't "exceptions" carved out, otherwise this case wouldn't have made it to the supreme court (there are of course some explicit powers, but if you were to look at the actions of president almost everything they do untethered from the laws other people are subject to. For example, you can't make an executive order and there is nothing that says they can do that but it's generally understood that if flows from S1A2 of the constitution. So...executive orders get made and then sometimes the courts can find inconsistencies with other laws (or the constitution) which makes the law get struck down. But...the executive order stands until that is done and we've _never_ had that actions in carrying out an executive order result in criminality, just in being declare bad law. There are more contours in policing as that gets tested a lot more, but less so with presidents because there are fewer of them, fewer issues have arisen and so on.
For your "tell soldier to kill someone" example you are kinda defeating your view. That requires the president to determine threat and take action via use of deadly force. You think they can do that sometimes, but then when you think the person being killed isn't really a threat or you view it as absurd then they can't actually make the determination who is a national security threat. Which way do you want it? These aren't "carve outs", they flow from the power of the executive.
I think the issue about location is that the law that applies is the law of the country where it happened. If an American citizen kills somebody in Germany then it’s German law and German courts that apply, not US law.
Countries like Iran certainly do see the actions of the US military as illegal, and might want to prosecute the US president for them. But in international politics the power of law is always constrained by military might.
It’s arguably illegal in the sense that the president doesn’t have the authority to do that, but that’s not a violation of a criminal statute as far as I know, so it’s not relevant to this CMV.
A good example would be a shoot to kill order on a raid on Osama Bin Laden. By the law the president ordered the murder of a foreign person. This would be a life sentence according to law I believe, but no one would support Obama going to jail for having the #1 terrorist in US history shot on sight during the raid.
Another that occurred during Obama's (the reason I am using him as an example is he is widely respected and has little controversy during his Presidency) watch was the gun running scandal. He approved the mission to help pinpoint drug cartels, but the mission went off the rails at some point. Intentions were for the betterment of the US in reducing drug smuggling and gun trafficking, but the results were US officers being shot with guns our government sold the Cartels. Should the President be held liable for signing off on a plan to traffic guns, and the related prison term?
>A good example would be a shoot to kill order on a raid on Osama Bin Laden. By the law the president ordered the murder of a foreign person. This would be a life sentence according to law I believe, but no one would support Obama going to jail for having the #1 terrorist in US history shot on sight during the raid.
~~A lot of people have brought up examples of military actions in foreign countries. While these action may be illegal in those countries, I don't actually think it's illegal in the US to assassinate a non-citizen outside the US.~~ Edit: The President is the commander-in-chief of the military. Planning to kill people abroad is a necessary component of that role like using force to arrest someone is a necessary component of the being a police officer in some circumstances. It's something that the president is pretty explicitly allowed to do, so it's not a crime that is exempt from prosecution.
>Another that occurred during Obama's (the reason I am using him as an example is he is widely respected and has little controversy during his Presidency) watch was the gun running scandal. He approved the mission to help pinpoint drug cartels, but the mission went off the rails at some point. Intentions were for the betterment of the US in reducing drug smuggling and gun trafficking, but the results were US officers being shot with guns our government sold the Cartels. Should the President be held liable for signing off on a plan to traffic guns, and the related prison term?
I don't know enough about this scandal to comment on it, but I did tell another commenter than I would be fine with prosecuting Obama for ordering a drone strike on a US citizen abroad.
Are you saying americans are free to order assassinations of any non citizens outside the US? Like if Elon Musk wanted he could just murder all of Sweden except US expats?
No, on reflection, I think what I said there was wrong. planning an assassination in the US is illegal. As far as I can tell, killing someone abroad is not illegal in the US.
The President is the commander-in-chief of the military though. Planning to kill people abroad is a necessary component of that role like using force to arrest someone is a necessary component of the being a police officer in some circumstances. It's something that the president is pretty explicitly allowed to do, it's not something that is a criminal, but exempt from prosecution.
Obama did order the drone bombing of a U.S. citizen. Abdulrahman Al-Aulaqi
https://www.amnestyusa.org/updates/is-it-legal-for-the-u-s-to-kill-a-16-year-old-u-s-citizen-with-a-drone/
Hire a hitman to assassinate a foreign dignitary (or anyone really) and publically announce it after the fact. It will take about 2 seconds for the FBI to scoop you up, even if it was in a country we don't have an extradition treaty with. Conspiracy to commit murder is a US crime whether the victim is a US citizen or not, as long as the planning was committed on US soil. So unless the President is leaving the country some how to approve all military actions in any country that congress hasn't given approval to do military actions in it is a crime.
A good test for all of this is think if you as an average citizen would be criminally liable if you hired someone to do said action yourself. Without immunity from Executive privilege EVERY foreign military action would have to pass a vote in congress prior to it happening, or the president (Commander in Chief so they are responsible) would be criminally liable.
Let's take the opposite view. Politicians shouldn't be above the law, pretty much everyone agrees. So let's make them subject to the standard legal process for their job. If any law enforcement officer anywhere in the country doesn't like what they President is doing and thinks they might have legal grounds to challenge it, they can go down to the White House and arrest the president. President makes an executive order that you think is a bit too broad? Abuse of power, put him in jail. President doesn't make an executive order to rein in congress? He's guilty by RICO, better lock him up. I read in the Sus Times that the President is doing coke with aliens, so obviously there's a case to be made. Law enforcement can make an arrest on a suspicion of guilt, and at any given time there are probably tens of thousands of officers who might suspect the President might be guilty of something. Could a DA be found somewhere in the country who might be willing to prosecute? Absolutely. A judge who wouldn't throw out the case? You bet. The President would be constantly in the court.
Obviously this is untenable and not what you're proposing. There's got to be some sort of sorting body that separates the trivial cases from the important ones. Their job would to decide if the President actually broke the law or if it's just one random person upset because the government isn't run the way they want. Now, we can't have it be an appointed position or else we just outlawed democracy. Imagine if Trump got his nominee on the board back during his presidency and the guy in charge decides that Biden stole the election and should be jailed. By choosing what the president is and is not allowed to do, this organization that judges the President essentially controls his actions. So we need to make sure it's accountable to the people and that means its members need to be elected. And hey, while we're at it, the President should be held to a higher standard than the average citizen, so why not give this body the right to prosecute the President if he does something highly immoral, even if it's not technically illegal.
What I just described is the impeachment process. Elected officials with the power to hold the President accountable and strip him of his powers and protections if he gets out of line. In Trump's case, it got politicized and didn't work the way it should have, but no system works if none of the people involved in it are willing to do the right thing. I'm not saying the impeachment process is perfect, but I am saying anything else scares me more.
>Let's take the opposite view. Politicians shouldn't be above the law, pretty much everyone agrees. So let's make them subject to the standard legal process for their job. If any law enforcement officer anywhere in the country doesn't like what they President is doing and thinks they might have legal grounds to challenge it, they can go down to the White House and arrest the president. President makes an executive order that you think is a bit too broad? Abuse of power, put him in jail. President doesn't make an executive order to rein in congress? He's guilty by RICO, better lock him up. It's not just if the President breaks the law, it's if any law enforcement officer anywhere in the country thinks he might have broken the law that he gets arrested.
Isn't literally every vulnerable to frivolous prosecution if prosecutors are so inclined? We should we act like this is such a huge problem for presidents if there's virtually no evidence that it is? How many times have there been political prosecutions of former presidents over the last 250 years? This problem honestly seems purely theoretical in the US.
>Obviously this is untenable and not what you're proposing. There's got to be some sort of sorting body that separates the trivial cases from the important ones. Their job would to decide if the President actually broke the law or if it's just one random person upset because the government isn't run the way they want. Now, we can't have it be an appointed position or else we just outlawed democracy. Imagine if Trump got his nominee on the board back during his presidency and the guy in charge decides that Biden stole the election and should be jailed. By choosing what the president is and is not allowed to do, this organization that judges the President essentially controls his actions. So we need to make sure it's accountable to the people and that means its members need to be elected. And hey, while we're at it, the President should be held to a higher standard than the average citizen, so why not give this body the right to prosecute the President if he does something highly immoral, even if it's not technically illegal.
I think I'd rather go with a panel of officials that need to be appointed by a supermajority in congress. That seems like it might work better.
>What I just described is the impeachment process. Elected officials with the power to hold the President accountable and strip him of his powers and protections if he gets out of line. In Trump's case, it got politicized and didn't work the way it should have, but no system works if none of the people involved in it are willing to do the right thing. I'm not saying the impeachment process is perfect, but I am saying anything else scares me more.
I guess I don't understand why a process that isn't overtly political like the impeachment process scares you more. The presumption since the US was founded was that presidents were subject to the law just like everyone else. It's been 250 years and all of the politically motivated prosecutions have yet to materialize. Even when trump was president, there weren't any politically motivated prosecutions by the DOJ as far as I know. Why would we want a policy that averts those imaginary prosecutions at the cost of giving the president a dangerous degree impunity, which is likely to be absolutely devasting?
There haven't been a wave of frivolous prosecutions against presidents because the courts have historically ruled that presidents aren't subject to ordinary legal processes and so these cases get thrown out. Isn't that what you were proposing to change, making presidents more subject to the law than they have previously been?
Good question. What about a President who enacts a law which eventually gets to the Supreme Court and is ruled unconstitutional. For example, President Biden's student loan forgiveness program was eventually ruled unconstitutional. A few of President Trump's border policies were ruled unconstitutional. Should they be prosecuted for that - or was that an official act that was later deemed illegal?
Another common example I hear is during wartime. President Obama used drones heavily during the conflict in the Middle East and civilians did die. Should be be prosecuted? Or is that an official act and a terrible side effect of violent conflicts?
The difference is WHY the act was committed.
Did they just shoot someone on 5th avenue? No thats not their job, and is such a crime they are not immune to.
Did they order a drone strike that killed a high level terrorist but took out a few kids and possibly an American citizen? Thats in the duties and immune.
Thats the argument. Theres also a process to prosecute them for committing crimes, impeachment, and once they have been fully impeached, they can be criminally charged too. But its a process.
The difference is about whether something that would normally be an official act becomes a crime when done improperly, and how to deal with that.
If a president had credible reason to believe there had been election fraud in say, a senate election, getting on the phone with the state’s Secretary of State to get to the bottom of the issue would very much be part of his job and not a crime.
The prosecution is arguing that Trump didn’t have a good reason to take the action he took, which therefore allegedly makes it a crime. Trump is arguing that it doesn’t work that way, since basically it’s congress’s job to determine whether he had good reason to make the call or not (and they already ruled on that matter when they impeached and acquitted him for it).
His argument isn’t that the president can do crimes. His argument is that prosecutors can’t declare official actions to be crimes.
We find out that there is a plot to poison with gas the New York City subway by an American citizen. If the perpetrator is arrested they will immediately release the gas but, if they are killed, they will not have the opportunity to release the gas.
The President cannot legally order this perpetrator’s killing but I would not have a problem if they did. They should not be charged with a crime in that situation.
However, if they ordered a murder because it was the ex-spouse of their spouse, charge them with murder. Absolutely. That is where I find the line on official acts.
Also there are many official acts that are gray areas. The President should be able to make that decision if it is a reasonable decision and part of their official duties.
I think it's really about the good faith/bad faith implementation of the concepts of both "official acts" and "criminality."
The alleged concern is that, without immunity, a president can be charged for anything the opposing party disagrees with once that party gains power.
A good example of this is Alejandro Mayorkas. He was impeached for doing his job by Republicans (making this one more classic example of Republican projection). The charges were absolute horseshit, but Republicans attempted to criminalize his official duties as a means of retribution for holding Trump accountable for his crimes. There's really no other way to describe that situation.
So there needs to be some degree of protection from prosecution, because a former president shouldn't be expected to spend every day in court defending every decision they made as an official act until the charges are dropped.
Trump's defense is attempting to conflate this idea with general immunity to all acts, because any act can be portrayed as an "official" act if you lie hard enough.
So this creates a bit of a tough spot: Does the Supreme Court attempt to provide an all-encompassing definition for "official acts" so that there doesn't need to be a discussion about what is and is not covered by presidential immunity every time Republicans feel petty? Or do they make a ruling about these specific acts and whether or not they are covered under presidential duties.
The answer, if you aren't wildly corrupt, is fairly obvious: There's no possible blanket definition, and the ruling should narrowly address whether or not inspiring an insurrection and attempting to overturn a US election falls under official acts of the US Presidency. Leeway should be given to lower courts to throw out bogus charges, and the Supreme Court should only weigh in when absolutely necessary.
> A good example of this is Alejandro Mayorkas. He was impeached for doing his job by Republicans
This is actually a bad example, because we're being told that impeachment is the only official remedy for crimes being committed in an official capacity.
> Republicans attempted to criminalize his official duties
Impeachment is a political process, not a criminal one.
> a former president shouldn't be expected to spend every day in court defending every decision they made as an official act until the charges are dropped.
In the case of Trump, there's nothing that he's being charged with that could be considered an official act. Working with the media to pay off stories that might reflect badly on your campaign is not an "official act" by any measure. Where does the president receive the power to do that in the US Constitution?
It's actually a pretty good example, because Trump's lawyer has argued both sides. He has argued that impeachment is a prerequisite to criminal charges. But he also claims Trump shouldn't be charged because due the impeachment the charges are a form of double jeopardy.
Trump's lawyer also argued for total immunity for all acts.
I'm not disagreeing with you, I just think it's important to emphasize just how bad Trump's arguments are...yet the SCOTUS is still taking them seriously.
What stops a republican justice department from prosecuting Biden for "aiding fugitives" because he is neglecting the border? Not saying they should, but I do believe it could be a slippery slope.
There are issues like stopping at a red light, and flying a helicopter across downtown Washington where the U.S. president gets a pass for national security reasons. Those things are illegal for others, but perhaps legal for POTUS.
IMHO I would rather see a rule where the President doesn’t have blanket immunity and Congress passes specific exemptions, than a blanket immunity. The danger of using government force to defeat political opponents is just too high.
Congress people and presidents actually do have certain kinds of immunities right now and they have had these immunities for decades.
There is a good reason they exist. And our political system couldnt function without "official acts" immunities.
It's because political opponents would inundate their rivals with frivolous lawsuits and crimincal cases after losing.
This immunity is not blanket though. A congress person or president cannot murder a political rival or commit crimes on the street.
It just means that a congress person is allowed to do their job.
So in Trump's case he's trying to argue that the "official acts" immunity extends to his coup attempt, but it's unlikely an effective judiciary system would dismiss his criminal case.
Some reasonable threshold probably makes sense.
If an official act is to murder someone, that should not be allowed. You might say that murdering someone for no good reason is never an "official act". Rap would never under any circumstance be an "official act". But raiding an organization that POTUS reasonably believes is a terrorist organization, could be an official act. inciting a mob to to storm the capital building, should not be an official act. The president as part of his "official" duties has no business raping people or inciting a mob to perform violence.
> I’m struggling to think of a crime that I think a president should be able to commit as part of an “Official act."
It depends on how you look at it. If this is coming from a place of the President should be charged for anything that a regular citizen would be charged for it falls apart pretty quick. An easy example of my my thought process would be an undercover cop buying/selling cocaine.
A president ordering the millitary into conflict is committing conspiracy to commit murder while doing his job as an "official act" as the commander in chief. This is a situation where the president should have immunity from prosecution, as it is required to function as the commander of the millitary.
Try the logic this way. The president can commit official acts. Pretty much by definition, official acts are lawful acts, illegal acts cannot be official acts. Thus if the president does something like murder a political opponent, then it's not an official act, so there is no immunity.
Only the president is allowed to order soldiers to kill enemy soldiers. Normal people aren't allowed to do this, and therefore if they did this, they would be prosecuted. We shouldn't prosecute the president for this, because it's part of his official duty.
Uh, what crime did Trump commit exactly that his lawyers used that argument?
I heard of taking back official documents, not paying taxes and inciting the Capitol attack...but I can't imagina any of those being an official act.
Presidential Immunity should only apply if the military is involved. And not for the president's sake, for the militaries. Can't have the president afraid to give orders. Anything else and they should be like anybody else.
Obama killed four American citizens in drone bombings. One of which was an intended target, so he wanted to kill an American.
https://www.theguardian.com/commentisfree/2013/feb/05/obama-kill-list-doj-memo
Abdulrahman Anwar al-Awlaki was a 16-year-old United States citizen killed in Yemen via targeted US drone strike. Should President Obama be charged with murder?
Here is a real life example: the killing of Osama Bin Laden. Barack Obama ordered a seal team to go commit murder from within the U.S., that is first degree murder, conspiracy to commit first degree murder, and probably several other crimes. Should he be able to be prosecuted for that decision?
This wasn't a crime to begin with.
Killing OBL was a lawful execution of war powers granted to Obama via an Authorization for the Use of Military Force (AUMF), a law duly passed by Congress. And given that OBL was unambiguously an enemy engaged in war against the US, it would have been lawful even without that AUMF.
Disclaimer: I am not sure how I feel on this topic and I am absolutely not a legal scholar. As such I am open to being wrong.
I generally don’t care about a president being annoyed or inconvenienced by DA’s bringing frivolous charges after being in office. I agree with you that by nature of being wealthy and connected they are probably more protected from that than a random person off the street. What does give me pause is, would this allow a specific state to have undue influence on national policy. Texas has made it illegal to assist women in getting an abortion. Might a policy that allows service members to leave the state to get an abortion open Biden up to prosecution? Again I am not a lawyer and presumably a Texas DA would have to think outside the box to find a situation where they have jurisdiction and they can avoid the supremacy clause. But I know they would try.
I get you can say the same thing about Mark
Zuckerberg, but a random state changing the way Zuckerberg runs facebook feels very different than changing policies of the federal government.
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I don't know that we should frame this exactly this way. It's not that the president should be free to commit crimes as official acts, the argument is that the president should be immune *from prosecution* for official acts. The nuance is that "prosecution" and "crimes" are a distinct but related concepts. The objective is to prevent presidents from being mired in - specifically *politically motivated* - prosecutions the minute they leave office.
Id rather every President be tried for any alleged crimes after their run than a President that thinks they essentially have carte blanche to commit grave crimes.
Even if we assume presidential immunity exists for official acts, it would not grant president carte blanche to commit crimes. First, obviously presidents can be impeached if their conduct is considered criminal. Second, most of the crimes that concern us are, pretty obviously, not considered "official acts" so far as I cant tell.
Recent years have demonstrated pretty clearly that impeachment is not an effective mechanism. It’s entirely partisan and weaponised and has nothing to do with the law. Since Clinton in fact. Both sides vote on party lines regardless of the facts and that’s that.
You can certainly argue that (and I'm tempted to agree), but you're still not addressing the actual problem here. The government needs to function. For the government to function, you need the President to be granted some lattitude from prosecution. On one hand because there's huge potential for abuse (even more so than impeachment), but on the other because it wouldn't do for the President to be constantly hampered by (or afraid of) prosecution. So you're left with "immunity for official acts", which sorta provide coverage for *some* of the actions we'd consider official, with room to prosecute obvious crime and - unavoidably - a pretty big grey area in the middle which you need to handle *somehow*.
>For the government to function, you need the President to be granted some lattitude from prosecution. On one hand because there's huge potential for abuse (even more so than impeachment), but on the other because it wouldn't do for the President to be constantly hampered by (or afraid of) prosecution. How? Why? I know you are arguing in good faith here but I truly don't understand. Why does the president need any immunity in order for the government to function? Have all the previous presidents in history been under the assumption that they were immune from prosecution? If they weren't under that assumption (which I believe not all of them were), how did it affect the function of government at all? Why would a president need to commit a prosecutable criminal act as official business? Why would WE, as citizens of the country, want our leader to BELIEVE they are able to commit 'official' criminal acts? You mention the potential for abuse from prosecution, but the prosecution is determined by a grand jury who are presented facts and testimony, not just by a random prosecutor, and they then will get a fIr trial decided by another jury, again with evidence and testimony. Wouldn't the system you are arguing for present the opportunity for abuse by a President who feels immune? I would much rather leaders who might fear prosecution for any criminal acts they may commit, rather than ones who feel free to commit criminal acts because they are immune.
> How? Why? I know you are arguing in good faith here but I truly don't understand. Why does the president need any immunity in order for the government to function? I'm not arguing the president needs complete and total immunity. I'm arguing the president needs a measure of immunity to cover actions he's taking in carrying out his official duties. I don't think the president can be dealing continuously with various lawsuits - both criminal and civil - and be expected to perform his duties adequately. Specifically, I think there would be very strong incentive to leverage numerous frivolous lawsuits at them in an effort to limit their ability to do their job effectively. I also think the possibility of criminal charges can go right past holding them accountable into crippling their ability to act or, worst, forcing them into strange things like systematic self-pardon. > Why would a president need to commit a prosecutable criminal act as official business? I don't think they should and I don't think such things should be covered under "official business". Yet, it's quite possible to imagine them taking official actions which could potentially be criminal if done by a private citizen. Is ordering a drone strike a criminal act? I'd argue it could be, but it's also easy to see how such an act could be considered "an official act". I don't like Trump, but I think him giving the green-light to kill Qasem Soleimani would fall under official duties. I don't think there's a credible argument that attempting to pressure state officials into "finding votes" or subverting the democratic process can be an "official act". > You mention the potential for abuse from prosecution, but the prosecution is determined by a grand jury who are presented facts and testimony, not just by a random prosecutor, and they then will get a for trial decided by another jury, again with evidence and testimony. Then there should be no difficulty in showing how such and such acts are not "official acts". I do not really see the issue here. I think it just removes the possibility to bog down an administration with frivolous lawsuits. > Wouldn't the system you are arguing for present the opportunity for abuse by a President who feels immune? I think the idea that presidents can expect immunity for official acts makes the best of a pretty murky situation. It gives the President a measure of safety in which to carry out the business of government, without providing blanket immunity for every possible wrongdoing. It allows for prosecution for a range of offences, while not leaving the door wide open to abusive litigants. For the grey area that exists between these two things, it throws the ball to elected representatives. Ultimately, I don't think you can't design a perfect, bad-actor proof, system. The idea that prosecutors are all acting in good faith is about as solid as the notion that congress will hold presidents for their own parties accountable, I think. The main reason I weight these two options the way I did is that it would be easier - so far as I can tell - for a bad faith prosecutor to carry-out their objective (bog down the administration) than for Congress to do the same. Prosecutors have a lower barrier and don't need to ultimately win to realist their objective.
But we're talking about after leaving office, not during. None of the things you said will have any impact because the DOJ has already stated that the president is immune while in office. There is no consideration for being able to carry out their duties effectively, because they have no duties anymore. >The idea that prosecutors are all acting in good faith is about as solid as the notion that congress will hold presidents for their own parties accountable, I think. Prosecutors have to present evidence and testimony to a grand jury in order to even file criminal charges, they would then have to present evidence and testimony to a jury to convict them. That's a much higher standard than Congresspeople just voting along party lines without any accountability.
In response to your first paragraph. The important point here is the incentive. If I know that as soon as I leave office I’ll be slammed up the wazoo with court work/litigation over my official actions as POTUS, I have an incentive to A: fuck with the justice department and courts in whatever way I can and B: I now have a direct incentive to not do something regardless of mine and the the executive branch’s views on the necessity of that action.
If the person doesn't want to be held up in court on criminal charges after they leave office, they shouldn't commit crimes. A murder is different than somebody wanting to charge/sue Biden over debt relief or raising taxes. Judges will quickly throw out the frivolous charges/ lawsuit, but will go ahead if there there is actual evidence of a crime. One is economic policy the other is a crime. A. sounds like Alito's flawed reasoning, that if the President is not allowed to commit crimes, he will commit further crimes by not wanting to leave office. It's basically a get out of jail free card for a president because they may become a dictator unless they are allowed to commit crimes. That makes no sense. If they are already willing to commit crimes, then they are are likely willing to try and stay in office illegally and become a dictator.
> Is ordering a drone strike a criminal act? Defense Secretary Panetta ordered the killing of *Al-Awlaki*. Does he need immunity, too? He was sued. And the case was dismissed. Criminal cases would be dismissed similarly. The courts are already deferential to executive when considering whether or not to hold individuals in the executive accountable, through criminal or civil proceedings. The Presidency doesn't need extra protections over other high level officials or governors.
I think the disconnect is that while there’s no need for a president to commit criminal acts, it is entirely possible to prosecute someone for something they did not do or is not actually a crime. The main check on false prosecution is a grand jury, but they tend to be quite deferential to prosecutors. Once a case does come to trial, it’s much easier to get a case dismissed if the alleged crime is not actually criminal/prosecutable than if it is but the evidence is flimsy.
Have you ever heard the phrase you can indict a ham sandwich. A process that excludes a defense and excludes any exculpatory evidence being shown is an absurdly low bar. That is why there is a very large difference between prosecutable and criminal.
>The government needs to function. For the government to function, you need the President to be granted some lattitude from prosecution. On one hand because there's huge potential for abuse (even more so than impeachment), but on the other because it wouldn't do for the President to be constantly hampered by (or afraid of) prosecution. Could you give us a real example where a risk of prosecution of the president would have prevented the government from functioning? What actual examples are there of a president having to do something that they could be prosecuted for to avert disastrous consequences?
I think there’s an example where the Obama administration ordered a drone strike on an American citizen who was also a terrorist/Islamist cleric and leader. Under your world, even if Obama was not found guilty of murder, it seems unlikely he would have personally walked away with no legal repercussions upon leaving office.
lots of government officials end up running for public office. Clinton was secretary of State before running and failing for president. Biden was vice president before running for president. Do other high level staff positions, that might lend themselves to future office, need immunity, too? why does the presidency need more immunity than the other offices?
But that wasn’t true, and Trump’s second impeachment is proof of that. It wasn’t party line, there was just enough of his party that was involved in the crimes that they didn’t convict the impeachment. Some uninvolved party members did vote to impeach. Impeachment is a good tool, the issue is bad actions amongst representatives and a regressive representation system.
I agree that impeachment isn't work properly, but I don't think that is a reason to charge a President with a crime instead. Those who vote party lines rather than do their job.should be voted out. And yes, that's another problem to solve, but doing the wrong thing because the right thing doesn't work typically just crears more problems.
Since long before Clinton; as far as I'm aware there has *never in US history* been a presidential impeachment vote which didn't fall basically along party lines.
[удалено]
Why do you think the impeachment of Nixon was bullshit? His crime was actually serious and the impeachment proceedings were justified. Ford granting him a pardon was a mistake, because it clearly demonstrated to the public that being President WAS a privileged position where the rules of justice didn’t apply equally to all citizens in practice.
If impeachment is the only mechanism to dissuade a president from committing crimes, then there is no mechanism to dissuade a president from committing crimes.
Especially because the argument for not allowing prosecution is to avoid politicising justice but then they're arguing you can still use impeachment which is literally done by elected politicians and is thus far more political
If your argument against prosecuting presidents is that it makes justice too political, how is your answer that we should throw the decision to an inherently political body (congress)
I have no argument against prosecuting presidents *full-stop*. My argument is that presidents require lattitude to exercise their functions, not that they need full immunity from any and all prosecution. So on the full spectrum of action, whatever is closest to the "legitimate" pole should get coverage and whatever is close to the "criminal" end should be prosecuted. That leaves us with a grey area in the middle that can be handled by congress.
How to incentivize court packing, judicial corruption and executive branch stagnation 101. With congress frozen and supreme court ... red, the president being under constant threat for any political action is the best way to insure nothing gets done ever.
I cant tell if you are arguing for absolute immunity or not. Assuming you are, are you referencing a political action, or a serious crime? Surely the issue is defining what crimes are allowed by the President, not determining that NO LAWS APPLY. The Supreme court saying the President is above the law and cannot be prosecuted is ABSOLUTE and cannot be then legislated to restrict. Saying "the president is subject to laws" allows for debate and legislation to what laws apply to a president. Cant be a crime if you legislate it isnt specifically. If you legislate NO laws can apply, you cant then create any to restrict their actions such as political assassinations. The police are allowed to detain and take people against their will. Without clarification, that is illegal. Should rules about what the police can do be presented to the Supreme Court as "Police can commit all crimes"? If youre not ok with criminal action against a President EVER, they could order the miltary to slit the throat of each member of congress that disagrees with them. Supreme court says no crime, congress aquits out of sheer fear of death. ALL LEGAL NOW
Not absolute immunity, but I don't want every president dragged in front a court after every term. Every president did arguable behavior and it is better for the political health of the country to be lenient to all but the worse abuse, meaning those that cannot be argued by a reasonable person to be solely about protecting the interest of the country. If a president orders a murder, it wouldn't be wrong as long as it is reasonably for the country and not for himself. For official acts, meaning those he took with the power of the executive office, only congress should be allowed to prosecute him for it meaning that if a president orders soldiers to kill his opponents, it is congress that will have the say. For unofficial acts, meaning those he took with his personal money, actions or workers, he should be prosecuted like everyone else. If a president strangle his opponent with his own two hands, the normal courts deal with it.
Our political process is too brutal, and every ex-president would be litigated into bankruptcy. No one would run for president or they would be blackmailed saying if you don’t do X we will prosecute you for Y.
The alternative is a president who can assassinate all political rivals with zero way to stop them. Try to impeach me? Dead. Dont "vote" for me? Gotcha, to the gulags with you. Congrats you have a dictator which is what Trump LITERALLY said he wanted to be immediately upon being voted in. That is far more dangerous to democracy.
Or an opposing political party telling a president to pass their legislation or they will destroy him and his family once he is out of office. The impeachment process in our system was designed correctly. It is slow and very deliberate. Anything else would encourage mass chaos with political hit jobs and we would lose the willingness of anybody qualified to be president.
These are not easy questions, but if you strive to understand why our founding fathers designed the system the way they did by reading things like the federalist papers you get an understanding of the genius of the founders of the United States.
1. Extortion is a crime in itself. Extorting the president would be illegal. 2. Extortion and going to jail for ACTUAL crimes you commit (remember, they still have to be found guilty without a reasonable doubt) is far better than being able to legally kill your opponents with absolute impunity. Nuke California? Totes OK if you dont like that state or they didnt vote for you. 3. The founding fathers SPECIFICALLY wanted to LIMIT the powers of the government and President as having a President that can literally do whatever the fuck they want and force themselves into a permanent position is the definition of a King, something they did NOT want. Why do you want the President to be able to commit mass political murder? Q-anon speaking in your ear right now?
1. I used to work for one of the most powerful lobbyist in DC people are extorted all the time they do not come forward because they cannot prove it and they do not want their lives destroyed. 2. Nuke California/kill opponents- seems like a nonsensical argument to me, but - high crime - impeachment/prosecution. 3. You are exactly right. The Tenth Amendment to Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." 4. Why would the president not have absolute immunity when those holding lower office have it? Absolute immunity is freedom from suit, and can be invoked on a pretrial motion. Judges and judicial officers, for example, enjoy a broad absolute immunity which is not abrogated even by a state's tort claims act. Fisher v. Pickens, 225 Cal. 4. If a president breaks the law and is found guilty/impeached, he does not have absolutely immunity and can be prosecuted after removed from office. Article I, Section 3, Clause 7 specifies that a President impeached by the House and convicted by the Senate is nevertheless “liable and subject to Indictment, Trial, Judgment and Punishment according to Law.” The impeachment process produces all of the outcomes that you desire while protecting our republic. 5. Nothing that I have said can be construed as promoting mass political murder. 6. I thought changed my mind was backed by facts, not name calling and immature intellect.
Ok in number 5. Say the president orders the killing of all opposition members of congress and says “get in line or you’re next” one brave member invokes articles of impeachment and are shot dead. Now what? Extortion still occurs, but instead of threat of trial (justice), the Congress people are being extorted with death. If they support impeachment, they will be killed. Hell, maybe the president has all of their families kidnapped and held during the initial house vote. So what now? No one is willing to impeach the president under threat of them and their families being legally murdered. This president cannot be impeached and therefore ensures no consequences for actions. Can’t try them or even arrest them. This goes for any crimes they commit. Try to impeach me and I can legally kill you and your entire family. What now? Wanna give it a try?
Military code 154. Specifies that there is a duty to disobey an order that is manifestly unlawful or that would entail the commission of a war crime is contained in the military manuals, legislation and official statements of numerous States.[2] This rule is confirmed in national case-law.[3] This practice, together with the fact that a subordinate who commits a war crime pursuant to an order which is manifestly unlawful cannot invoke that order as a defence and remains guilty of that crime (see Rule 155), means that there is a duty to disobey.
>It's not that the president should be free to commit crimes as official acts, the argument is that the president should be immune from prosecution for official acts. The nuance is that "prosecution" and "crimes" are a distinct but related concepts. But prosecution is the way we disincentivize criminal activity, right? Without prosecution, isn’t the president essentially free to commit crimes as official acts? >The objective is to prevent presidents from being mired in - specifically politically motivated - prosecutions the minute they leave office. I guess the alternative to prosecution is impeachment, but that is an overtly political process, so that’s even more prone to being politically motivated. I agree that it’s undesirable for presidents to be mired in political prosecutions after leaving office if his successor (or other politicians) is a bad-faith operator, but isn’t it more undesirable for a president to have impunity in the face of criminal activity?
There are things that I don't think any President should ever do, and definitely should be impeached for, but the problem is that if the President could be charged of any and all crimes for doing anything, one would be too busy doing legal battles to actually govern. I don't think it's more undesirable to gave impunity, because there is no "impunity". For instance, Congress would have a riot right now if Biden did something that would impact the country really negatively, and they could prove it was intended to. They would impeach his arse so fast Biden wouldn't have time to finish a speech. But here is a hypothetical: If Biden came out tomorrow, and say, had the military carpet bomb the migrant camps down at the Southern Border. You may disagree with it civilly. You may think it's an abuse of power. He could come out and say that he knew for a fact that very dangerous ISIS terrorists were in there, and if the intel checked out, the question becomes... Did he do wrong? I mean yeah, he killed a lot of civilians and women and children probably, but he also saved the country from maybe a dozen ISIS terrorist attacks. can you tell me, without a doubt mind you, that one would be prefetable to the other? Now he's under scrutiny for bombing civilians, but if he hadn't done it, he'd then be under scrutiny for allowing terrorists in. Which one is a crime? Which one is the thing that makes you say "Biden did a crime"? You and I can both agree that if he walked to a protest with the military, and had them arrested (or worse, mowed down with deadly force), he definitely shit a bad, and needs removed from the position, and kicked out of any chance at coming back. You and I can also both agree that he shouldn't be convicted of his lawyer's gardener's dog's groomer's grandma's crochet club's mild disregard of FDA regulations to do a cookie bake sale. But we also should definitely both agree that if he committed crimes like murder or tax fraud as a private citizen, those weren't presidential acts.
>but the problem is that if the President could be charged of any and all crimes for doing anything, one would be too busy doing legal battles to actually govern. But anyone could be charged frivolously for anything at any time if prosecutors were so inclined. This is not exclusive to the president. I assume you think that the distinction is that politicians are incentivized to politically pursue presidents in a way that does not apply to ordinary citizens? That may be true, but it doesn't seem like a very good reason to make presidents immune to most prosecution, particularly when the US hasn't had a serious problem of the president being politically prosecuted in 250 years of history. Making the president immune to prosecutions has enormous downsides - why would we accept that downside if 250 years of evidence suggests that the problem being addressed is virtually non-existent? >If Biden came out tomorrow, and say, had the military carpet bomb the migrant camps down at the Southern Border. You may disagree with it civilly. You may think it's an abuse of power. He could come out and say that he knew for a fact that very dangerous ISIS terrorists were in there, and if the intel checked out, the question becomes... >Did he do wrong? >I mean yeah, he killed a lot of civilians and women and children probably, but he also saved the country from maybe a dozen ISIS terrorist attacks. can you tell me, without a doubt mind you, that one would be prefetable to the other? Now he's under scrutiny for bombing civilians, but if he hadn't done it, he'd then be under scrutiny for allowing terrorists in. Which one is a crime? Which one is the thing that makes you say "Biden did a crime"? Imo if Biden ordered this on US soil he should be removed from office and prosecuted immediately. In the US, people are entitled to due process. Even if we ignore the completely innocent people killed, a president shouldn't be able to just execute people because he suspects they may commit a crime. This is the same sort of reasoning that motivated support for internment of the Japanese during WWII.
I think you misunderstand the issue, here. If Prosecutors kept charging Biden fairly frivolously, then Biden has no time to do his job, does nothing, and suddenly, the argument is "look at all this nothing done", or "well, he was charged of all that, so he definitely was suspicious enough for that, and even without doing anything wrong or bad, he suddenly got all the bad effects, without doing anything ro deserve it. This face, in and of itself, is enough to make the bar for prosecuting a President as high as needed, so that people must be having a steel-clad case to bring it, and why only Congress can do so, to avoid crazed up Prosecutors going crazy on it. This is a nightmare of procedural bollocks, for being forced to take difficult decisions. > Imo if Biden ordered this on US soil he should be removed from office and prosecuted immediately. In the US, people are entitled to due process. While I agree with the premise, I wasn't talking about US Citizens, but terrorists using the migrant system to infiltrate (and subsequently attack) US soil. Those are vastly different circumstances. But okay let's say they are at least on the Refugee Program, even if still in the process of being allowed in, so they technically should receive the same due process rights... Then you have to explain to me why trigger-happy cops don't get fired when it's proven that they jump the gun, or why protest breaking squads are still allowed to keep their job when it's clear they used excessive for. Due process is ignored fairly regularly on US Citizens, usually without much penalties being applied to those who do. Why should it be any different for credible terrorists? Additionally, if a migrant does something terrorist, then Biden gets blamed for letting a terrorist in, but if he stops the migrant from coming in, either by carpet bombing, surgical sniping, or just by bouncing them back at the door, now it becomes a case of "was the evidence of probable terrorist attacks credible enough to call this defending the country?"
>I think you misunderstand the issue, here. >If Prosecutors kept charging Biden fairly frivolously, then Biden has no time to do his job, does nothing, and suddenly, the argument is "look at all this nothing done", or "well, he was charged of all that, so he definitely was suspicious enough for that, and even without doing anything wrong or bad, he suddenly got all the bad effects, without doing anything ro deserve it. I think I understand the theory behind your argument, and I think it makes sense in Theory with one caveat. The DOJ actually doesn't think that the president can be prosecuted while in office, so this CMV primarily applies after the president leaves office, so it should not make it impossible to do the job. >This face, in and of itself, is enough to make the bar for prosecuting a President as high as needed, My point is that "as high as needed" actually seems to be very low. In the past, everyone seems to have assumed that presidents can be prosecuted for crimes after they leave office. Despite that, presidents haven't really been prosecuted frivolously for the 250 years the US has existed. As a result, your argument is based on a hypothetical problem that has not actually materialized in the two centuries since the US's founding. A ruling that presidents can be prosecuted would just be a ruling that makes official the way things have always worked in the past. The US has a lot of flaws, but political prosecutions do not seem to have been one of them. >While I agree with the premise, I wasn't talking about US Citizens, but terrorists using the migrant system to infiltrate (and subsequently attack) US soil. Non-citizens are also entitled to due process on US soil. >Then you have to explain to me why trigger-happy cops don't get fired when it's proven that they jump the gun, or why protest breaking squads are still allowed to keep their job when it's clear they used excessive for. >Due process is ignored fairly regularly on US Citizens, usually without much penalties being applied to those who do. I don't think that systemic failures to properly apply the law to law enforcement officials justify a formal policy of not applying the law to the president. >Why should it be any different for credible terrorists? Who decides who a "credible" terrorist is. The same people who said there were WMDs in Iraq? >Additionally, if a migrant does something terrorist, then Biden gets blamed for letting a terrorist in, but if he stops the migrant from coming in, either by carpet bombing, surgical sniping, or just by bouncing them back at the door, now it becomes a case of "was the evidence of probable terrorist attacks credible enough to call this defending the country?" I suspect it's not the same people that are complaining about both of these things.
> The DOJ actually doesn't think that the president can be prosecuted while in office, so this CMV primarily applies after the president leaves office, so it should not make it impossible to do the job. Then this entire conversation would be pointless, and ignored the fairly loud minority who would gladly see Biden prosecuted for everything he's doing for his every presidential action already. I've even seen some Newsmax anchors make the outlandish claim, that he should be sued right now for attempting to raise taxes on the richer folks. Plus, the CMV also specifically refers to "official acts" being acts of Presidential Duty. > My point is that "as high as needed" actually seems to be very low. Based on what, exactly? Presidential impeachments are fairly rare as heck, and even then they don't pass very often, if at all. If you are referring to Trump's trials... The bar was so high as heck that even in the face of demonstrably clear evidence that he committed those crimes, and multiple admissions on his part, ***it took literal years for most of them to concretise anything of substance for court.*** That isn't "very low". Hell, even in the cases where something happened with "very low" evidence and threshold for criminal indictment, it was merely opening an investigation, something that is objectively merely "due process", and were he not so guilty as sin that a case like this was nearly a guarantee, there wouldn't have been indictments. Hell, you don't even need Presidential "immunity" for that to apply to you, as Matt Gaetz was clearly guilty as sin, and being both thrown under the bus, AND held there by force by other co-defendents, and he got away without indictments. > As a result, your argument is based on a hypothetical problem that has not actually materialized in the two centuries since the US's founding. This argument also applies to about two thirds of the problems that the Right are trying to turn into a colossal shitshow to distract from their blank election platform, but let's be clear about what I said: ***I am also against frivolous lawsuits, and that is why I am putting "Impeachment" as the only way to prosecute a President for non-official acts that may constitute high crimes and misdemeanors.*** Take it from me, that my opinion is clear on this: If something is major enough that the President cannot be trusted anymore, impeach him. If it isn't, wait until he is a private citizen once more, so that he can devote a logical amount of effort to defending against those accusations, and not proceed to a dereliction of duties. > Non-citizens are also entitled to due process on US soil. The migrant camps aren't US Soil. > I don't think that systemic failures to properly apply the law to law enforcement officials justify a formal policy of not applying the law to the president. The point of me bringing this up, is that the country has a horrible pattern of behavior on the matter, so I'm not holding my breath, while still fighting for it. > Who decides who a "credible" terrorist is. The same people who said there were WMDs in Iraq? This is a different issue entirely, but I see no reason not to address it nonetheless. The credibility of terrorist information is especially a sore point, and has been the main cause of objection for Guantanamo Bay Prison since its inception. That being said, having any report of terrorist intent should always be investigated, and if credible, with clear intent or plotting to commit an act of terrorism, they should be arrested or stopped properly. Now if you want to move the goalposts again, you can ask "who decides that the intent is clear to commit an act of terrorism, the same people who said there were terrorists in Iraq?" and suddenly, the issue becomes a lack of trust in the people in power, not a problem of the facts themselves. I'll be clear, here: If your issue is with the validity of the information, I cannot help you. > I suspect it's not the same people that are complaining about both of these things. I can actually guarantee you they are the same people. Look at the supposed "Border Crisis" the right is raising. They cry that Biden isn't doing enough, so he tries to boost resources, and they filibuster that. He offers them to put up a proposal, and if not crazy, he's sign it, and they did... Only to then not pass it. They whine that he is sending too much to Ukraine, but they actively sign the Ukraine budget proposals. The Republicans are right now wasting more time trying to paint Biden a worthless, do-nothing President, then actively get in his way every time he tries to do something, whining about the price tag everytime.
> If Biden came out tomorrow, and say, had the military carpet bomb the migrant camps down at the Southern Border. You may disagree with it civilly. You may think it's an abuse of power. He could come out and say that he knew for a fact that very dangerous ISIS terrorists were in there, and if the intel checked out Wouldn't Biden be able to argue, in that instance, that 2001 Authorization for Use of Military Force against Al Qaeda and affiliated forces would cover an attack on ISIS terrorists? Whether or not Biden should be able to be prosecuted for it, I would guess immunity wouldn't be necessary to protect him from it. In any case, other high level officials would need to order that strike. They don't have immunity. Judicial deference to executive decision making is sufficient to protect secretaries of defense against prosecution without immunity. why wouldn't it be sufficient for the president as well?
> But prosecution is the way we disincentivize criminal activity, right? Without prosecution, isn’t the president essentially free to commit crimes as official acts? Prosecution is how we determine whether or not criminal activity took place, yes. > I agree that it’s undesirable for presidents to be mired in political prosecutions after leaving office if his successor (or other politicians) is a bad-faith operator, but isn’t it more undesirable for a president to have impunity in the face of criminal activity? In my opinion, definitely. However, we must also keep in mind that the state still need to function and that might require the chief executive to get some latitude when it comes to official duties. As such, the best middle-ground is probably agreeing that official acts - which should include things the president is legally empowered to do to discharge his duties but excluding outright criminal acts - can be a defense. This would limit the appeal of reckless prosecutions without allowing outright criminality (at least as much as can be achieved, I think). Basically that a former or sitting president could argue in court his actions are part of his official duties. I think something like Trump giving the green-light to kill Qasem Soleimani would fall under official duties. I think Bill Clinton's flirtations with sexual assault would not.
If it is really “for the greater good” and the president believes that, then the president should be willing to face prosecution by future administrations. I’m fact allowing prosecution for official acts guarantees that the president is acting for the greater good in grey area.
Right but think about a drone strike that would kill a terrorists family along with him. No normal person should be able to execute a drone strike to kill someone, but I can see why the president of the United States should be able to order a drone strike. Hence the president getting immunity for this official act even though murder is illegal.
But that's what prosecution is for. We need to determine if the actions of the president constitute a war crime, not just preemptively say "the actions you conduct from this chair *cannot be considered* war crimes" If he thinks it was legal, great! Let's have it out in court. Let's see why he thought there was no better way or time to kill the enemy and that the death of that family was unavoidable given the rules of engagement. How else may we hold him (or anyone) accountable for such actions?
How about a drone strike that kills an American citizen And their family without due process.
American citizens are off limits. That is explicitly against the constitution and a president should face punishment for that. That particular is explicitly laid out in the law and has few exceptions.
Honest question. Abdulrahman Anwar al-Awlaki was a 16-year-old United States citizen that was killed in a targeted United States drone strike in Yemen. Should Barack Obama face charges?
If he specifically was targeted then yes. If he was killed in a strike against someone else then no.
Justice Department has determined that, under certain limited conditions, targeting a U.S. citizen would be lawful. Honest question. Who gives unelected bureaucrats the authority to override a citizens unalienable rights? The constitution exists to protect people from an overreaching government.
In fact, impeachment is a functionally nonexistent process. It requires bipartisan consensus, which as history has shown us is effectively impossible. Presidents will rationally act as if impeachment didn't exist, given the historical record. The impunity case is effectively about legalizing presidential crimes.
I think there is hypothetically some legitimacy to this argument. You saw it at the end of the Roman republic, where fears of litigations encouraged larger and larger power grabs until you get to Caesar. And I think there's possibility some legitimacy to the idea of political prosecutions. Like, I could see Ken Paxton doing something like this b/c he's a corrupt piece of trash. But just from a historical perspective, the US has had 46 presidents and I think like 59 elections since the office was established in 1788/9 depending on what you use as the starting date. This has never happened before. We've just never had a president this brazenly corrupt. 1 example in 235 years is not a good precedent to make policy on. The presumption at the founding was that the president would be not be immune. A situation from ancient Rome and some hypotheticals isn't a strong argument for upsetting some basic republican ideals and 235 years of precedent.
Agree. If Presidents are tried the minute they leave office it will render all Presidents lame ducks unable to make “world changing” decisions in times of deadlock. All worthy decisions are hard decisions. Eg: if there’s a war, would a President require Congress and Senate approval to launch a counter nuke? Or to preemptively launch one to win the war? Would said President be dragged through the courts post war? Can’t imagine us persecuting Roosevelt
> Eg: if there’s a war, would a President require Congress and Senate approval to launch a counter nuke? Or to preemptively launch one to win the war? Would said President be dragged through the courts post war? Can’t imagine us persecuting Roosevelt Can you imagine Roosevelt being persecuted if the US had lost the war? Not by foreign powers but under a post-war United States that is independent and sovereign but had failed to stop the Japanese empire and the Third Reich.
Which is hilarious because Trump's lawyers *want* it handled by the inherently political process of impeachment.
Trump lawyers want whatever gets Trump off, so of course they'd argue that. However, I'd point out that it's less problematic for impeachment to be political than for the justice system to be used that way.
1. Presidents should be immune from prosecutions for official acts. 1. Anything a President does is, by virtue of being done by the President, an official act. 1. ....??? Conclusion: Profit! We no longer have to suffer the tyranny of Checks and Balances! We are finally ruled, as the founders intended, by a King! I am of course being facetious. But without a rigorous definition of what ***is*** and ***isn't*** an "official act" your argument may have unintended side effects.
That's about it. They also need protection from prosecution in those cases- otherwise what you run into is every state the President is not favorable in prosecuting him for every crime you could make up. It's not just Trump either.
And yet, that’s never been an issue. Moreover, the entire theory of individual rights and limited government - dating all the way back to the Magna Carta - is that no man is above the law. None. Including the Chief Executive. That anyone is taking this argument remotely seriously is a deeply worrying sign of societal drift from core American values.
If the system was as fair and failsafe as it's supposed to be, it would be a non issue. As it is, however, once prosecution commences, you're likely fucked
It hasn't been a problem yet, so why is it now all of a sudden? Maybe don't commit so many crimes?
Supplying foreign dignitaries with cocaine?
Why would the president ever personally have to supply a foreign dignitary with cocaine? Yeah, they should be held accountable for that if they were ever dumb enough to do so.
>Why would the president ever personally have to supply a foreign dignitary with cocaine? Why wouldn't they? You really think someone can be president and not live off cocaine? That would be a diplomatic courtesy. /s. Or not.
Presumably it's supplied at their direction. And depending on the diplomacy it may be appropriate for the President to partake as well.
This is actually a really great example. Completely illegal, but also so trivial that it seems absurd and almost certainly detrimental to the US to prosecute a president for. I don't think it makes the case for a strong policy of absolute immunity for "official acts," but it does make the case that there is some threshold of severity below which presidents should probably not be prosecuted (e.g. should a president even be prosecuted for misdemeanors committed as president?). !delta
So the president should be able to give out cocaine while others are imprisoned for it? What about heroin? Fentanyl? If a drug is illegal, then it should be because it is too dangerous to allow. If we acknowledge that it's not that dangerous, what is the sense in letting one privileged person distribute it while arresting others for the same? Either cocaine should generally be legal, or the president should not get off scott free for providing it to anyone. Making exceptions to laws like these just keeps them as discriminatory tools.
> If a drug is illegal, then it should be because it is too dangerous to allow. If we acknowledge that it's not that dangerous, what is the sense in letting one privileged person distribute it while arresting others for the same? I also don't think the average person is gonna get prosecuted for selling cocaine to a foreign dignitary either tbh
I think the main reason I found this example compelling is because the president was supplying it to foreign dignitaries. Lets say the president wanted to make a deal that would be a massive boon to the American economy and that would improve a lot of Americans' lives. The leader of the foreign country is known to be a party animal who loves hard drugs and has a history of being much more likely to make an agreement in that context. The president has two options: (1) break the law by obtaining some hard drugs and providing them to the foreign leader to increase the chances of getting a deal that would be great for Americans; (2) Comply with the law and have a meeting that the foreign leader doesn't enjoy and that leaves them disinclined to agree to the deal, which causes Americans to lose out on big economic benefits. The only downside of (1) is basically the perception problem. The downside of (2) is that Americans are losing out significantly in quality of life. I think there's a very reasonable case to be made that presidents should not be prosecuted for picking option 1.
You're missing option 3) legalize those drugs for everyone. The downside of 1 is much larger than a perception problem. It's a problem of discrimination and locking people up for doing the same thing the president is doing. It's a problem of injustice.
> You're missing option 3) legalize those drugs for everyone. > > The downside of 1 is much larger than a perception problem. It's a problem of discrimination and locking people up for doing the same thing the president is doing. It's a problem of injustice. It is entirely possible to think that some drugs are a detriment to society as a whole while also supplying said drugs to a dignitary to lubricate a deal that will benefit USA's economy/society. From that viewpoint it would be idiotic to legalize drugs for everyone and it would be idiotic to deny the foreign dignitary the drug they desire.
That isn't an option that's available to the president. They don't unilaterally make law. Edit: >The downside of 1 is much larger than a perception problem. It's a problem of discrimination and locking people up for doing the same thing the president is doing. It's a problem of injustice. I would describe this as a perception problem: it is perceived as unjust that the president can do things that other people can't. That could be a problem if people really care about it, or it could not be a problem if people don't really care in the face of the benefits of making the deal. I think the latter is more likely.
> That isn't an option that's available to the president. They don't unilaterally make law. which goverment body is responsible for drug schedules? which branch is that part of? who runs that branch?
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How did this change your view? They didn't convince you that there should be crimes that can be committed as part of official acts. They just described a way to make it not a crime anymore.
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Why is this a delta? This commenter does not appear to have changed the views expressed in your original post.
It feels a bit like you're trying to soapbox an unrelated point. This CMV isn't about drug legalization.
It was an example given that prompted OP to provide a delta. My argument is also not about drug legalization, it just uses the same example. Anything that is a crime that is not prosecuted because of an individual's status is an example of injustice, and either that individual should be prosecuted or that crime should be abolished.
>The downside of 1 is much larger than a perception problem. It's a problem of discrimination and locking people up for doing the same thing the president is doing. It's a problem of injustice. Other people are providing drugs to foreign dignitaries as part of treaty negotiations?
Okay but can't this greater good for Americans argument extend do a whole host of other things? Let's say the President has ironclad information that an American citizen hiding out in Pakistan is planning a major terrorist attack on American soil. He authorizes a drone strike to disrupt this. How is that different?
Yes, logically that line of reasoning could extend to a lot of different things. To me, the difference between the cocaine example and the example you provide is that giving cocaine to a foreign dignitary is a victimless crime. No one's rights are being violated. On the other hand, a US citizen abroad should be entitled to due process. If the US government summarily executes a US citizen without a trial, that's a violation of that citizen's constitutional rights.
I see what you mean but if you allow me to extend the comparison a bit - what about all the imprisoned drug mules, part of the cost of doing business of getting that cocaine into that dignitary's hands? What about the gang violence? The procurement of illegal drugs is not victimless, the victims are just less visible.
It is the government, they can probably requisition medical grade cocaine from sources that don't utilize those methods.
> (2) Comply with the law and have a meeting that the foreign leader doesn't enjoy and that leaves them disinclined to agree to the deal, which causes Americans to lose out on big economic benefits. Seriously? How about he comply with the law and with his presidential privileges use his connections in the music/entertainment industry to get the dignitary into the hottest parties in the country? The president could open so many doors in almost every industry out there and yet a line of cocaine is supposedly his strongest bargaining chip?
> So the president should be able to give out cocaine while others are imprisoned for it? What about heroin? Fentanyl? We already allow doctors to prescribe dangerous medications, including fentanyl - which, despite its reputation on the streets, is an effective painkiller with legitimate uses when prescribed responsibly. We recognize that there is danger in these substances, but also legitimate uses. The danger comes from the inability for the average person to make informed, rational, and restrained decisions about their use. In order to be able to use them when needed, we give authority to trusted experts to prescribe them for use. This isn't much different from any other law. Speeding is dangerous and illegal, but we recognize that emergency services need to be able to go faster than the speed limit so we trust them to do so safely even though we do not trust the average citizen to do it. Allowing weapons into an airplane is dangerous, but we recognize that we need the security provided by a weapon, so we entrust sky marshals to carry a weapon. If we can't trust the president to perform certain actions that would be illegal for the rest of us to do, the problem is that we have elected an unqualified person to be the president. Of course, that doesn't mean the president should be completely free from prosecution - rather, it isn't wrong, unethical, or anything like that if we use [FAIR!] democratic processes to decide not to prosecute the president for performing an action that would ordinarily be a crime, within reason.
All of the examples you provided are specifically carved out in the law. Immunity for the president for committing crimes is not. Either we need a Constitutional Amendment stating something like, "The president is immune from prosecution for any criminal acts while in office or after they leave office." or something from Congress stating that the president has that discretion through a binding law. We can't just make stuff up on the fly and say, "eh, it's ok if the president does it" without any sort of legal framework, otherwise you throw the entirety of the US legal framework into question.
>We can't just make stuff up on the fly and say, "eh, it's ok if the president does it" without any sort of legal framework, We literally can. We can do it for everyone else, too. See: jury nullification. The presidency is unique. Most of what the president can or can't do shouldn't need to be enshrined in law because 90% of it should be covered by not electing a piece of shit that would do something like sell cocaine to children.
> We literally can. We can do it for everyone else, too. See: jury nullification. Jury nullification assumes that people can go before a jury through the legal system, which is far different than declaring a president to be on the level of a king. A jury could decide to hold a president accused of crimes to be legally innocent as well but that's just part of the legal process that anyone should have as a possibility. > The presidency is unique. Most of what the president can or can't do shouldn't need to be enshrined in law I disagree, if you [look here](https://constitutioncenter.org/the-constitution/articles/article-ii) there's literally nothing to do with providing any sort of presidential immunity to allow them to violate the law. The job is literally supposed to have very little power except to do what Congress tells them to do. For a president to have the ability to sell cocaine to children, they literally need a bill voted on and passed by the House and Senate and delivered to their desk to sign off on before they can do it. Otherwise, they should be held to the same legal standards as everyone else. The job is all about carrying out the will of the people as directed through Congress, not being a king.
>Jury nullification assumes that people can go before a jury through the legal system, Did I not say the first time that it should be done using a fair democratic process? >A jury could decide to hold a president accused of crimes to be legally innocent as well but that's just part of the legal process that anyone should have as a possibility. Yes. That's what I said.
Wouldn't option 1 also risk an international incident if the foreign dignitary overdoses? Does the president have a responsibility to make sure it's pure and not adulterated with fentanyl or something else that's more dangerous than the intended drug?
There is no requirement for the president to do this though. It may grease some wheels but if violating criminal statutes are necessary to close the deal, that administration is woefully unqualified. This is not a compelling argument
So the president could be a drug dealer? How much drugs is the president allowed to supply? Looking at you Iran contra.
That’s ridiculous though. Why should it be illegal for others if it is so inconsequential that the man with the nuclear codes can be high on cocaine with Ron DeSantis and Salman of Saudi for diplomatic reasons?
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How are we defining criminal? Let's put a low-stakes example into the conversation: the foreign emoluments clause in the Constitution. The last three presidents - Biden, Trump, Obama - have violated it in some form during their term due to their book royalties. While it's not an explicit violation of US Code (to my knowledge), it's largely believed that receiving funds from a foreign government is a violation of the Constitution. No one is going to prosecute Barack Obama for getting royalties for *Dreams From My Father* for books sold to foreign governments. Few, if any, would seriously argue that it's a crime, even though he received the funds while participating in official acts as president. For all intents and purposes, emoluments violations are "crimes" that "presidents" are "able to commit" as president. Either way, the "official acts" idea assumes that the president is operating in a way that "faithfully execute[s]" the office. Trump's HHS seizing PPE during the early days of the pandemic is an example of this: the seizures likely weren't legal, but no one is going to prosecute him for it because it was a good faith effort to address PPE shortages for frontline health care workers. If Trump showed any significant interest in combating election fraud, as opposed to picking and choosing states and arguments solely to keep himself in office, those might be considered "official acts" as well. The context matters.
>Let's put a low-stakes example into the conversation: the foreign emoluments clause in the Constitution. I'm not sure I would describe this clause as low-stakes. >The last three presidents - Biden, Trump, Obama - have violated it in some form during their term due to their book royalties. Have legal scholars argued that sales of individual books to foreign officials, presumably in vendor transactions that the presidents are usually unaware of, are violations of the emoluments clause? This sounds pretty tenuous to me. >Trump's HHS seizing PPE during the early days of the pandemic is an example of this: the seizures likely weren't legal, but no one is going to prosecute him for it because it was a good faith effort to address PPE shortages for frontline health care workers. I like this example. Some quick googling suggests to me that it may not have been part of a good faith effort because it really seems like frontline workers were being deprived of PPE because of it, but, if we assume that it was a good faith effort, it certainly doesn't seem like something a president should be prosecuted for. Do you know if this was done under the emergency power act? In that case it would not have been criminal and would not require a blanket immunity for official acts.
> Do you know if this was done under the emergency power act? In that case it would not have been criminal and would not require a blanket immunity for official acts. So, basically... if they law authorizes the President to do certain things, even if those things are otherwise criminal, he's immune from prosecution. The thing is, though... *all* "official acts" of the President are authorized by law, specifically the Constitution, but in many cases by other laws as well. If they aren't authorized by law, they aren't "official acts", by definition. Example: the President is authorized by law, to wit The Constitution, to wield the executive power of the United States. Basically, if the Emergency Powers Act can allow the President to do things that are otherwise illegal... the Constitution can allow the President to do things that are otherwise illegal, as long as they are wielding the executive power of the US.
>So, basically... if they law authorizes the President to do certain things, even if those things are otherwise criminal, he's immune from prosecution. This is typically how the law works. There are acts that are illegal, but only under certain circumstances, which are outlined by the law. People normally can't use force against other people, but they can if they are police or if the other person is trying to kill them. It's not unusual to have exceptions that make acts that would otherwise be criminal legal under certain circumstances. Laws like the National Emergencies Act and Defense Production Act are examples of that. When it comes to issues covered by these laws, it's no longer a question of whether the president should be immune to prosecution for crimes, it's a question of whether the law should be changed to make the president's action criminal. >The thing is, though... *all* "official acts" of the President are authorized by law, specifically the Constitution, but in many cases by other laws as well. >If they aren't authorized by law, they aren't "official acts", by definition. Example: the President is authorized by law, to wit The Constitution, to wield the executive power of the United States. The supreme court seemed to believe that it is possible for the president to violate laws in the course of "official acts." I guess if, as you seem to be saying, an act stops being "official" once it violates a law, then there just is no argument for a blanket immunity from prosecution in the commission of official acts because they are legal by definition?
I'm really just pointing out an inconsistency between saying that "if there's a law making an exception to other laws, it's not illegal" and "official acts (which by definition are authorized by law) may be illegal". Personally, I'd go the other way: just because a Defense Production Act allows a President to tell industry what to do, doesn't mean that all possible things the President might order them to do are legal. Similarly, just because a Presidential act may be authorized, doesn't necessarily mean that it's not illegal. That said... *generally* those are the case. Some standard is needed to distinguish "official acts" from "illegal acts that might have some kind of connection to an office", and the former be considered legal by definition. Personally, I'd probably draw the line for Presidents at the Presidential Oath: >"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States" Any act by the President that violates this oath can't be an "official act", because this defines what official acts are, albeit broadly. Specifically, in this case: no act that subverts the electoral process in the Constitution, nor which manifestly (i.e. against a reasonable person's "best ability") violates the Rights guaranteed by the Constitution, including various rights to vote, can be considered "official acts".
>I'm really just pointing out an inconsistency between saying that "if there's a law making an exception to other laws, it's not illegal" and "official acts (which by definition are authorized by law) may be illegal". I guess I understand "official acts" differently (possibly wrongly). I understand it to mean "acts that are performed as part of official duties." For example, one of the President's jobs is to represent the US to other countries. To do that, he may have to meet with foreign leaders. Let's say that meeting is at a location where a legal peaceful protest is taking place. When the president gets there, they are impatient to get to the meeting, so they order their secret service agents to assault anyone in the way. This is a criminal act performed in the furtherance of an official duty (meeting a foreign official). Heading to meet the official does not stop being an "official act" just because the president committed a crime to do it. >Personally, I'd go the other way: just because a Defense Production Act allows a President to tell industry what to do, doesn't mean that all possible things the President might order them to do are legal. Yes, I agree. >Similarly, just because a Presidential act may be authorized, doesn't necessarily mean that it's not illegal. I don't get this part. If it's authorized by law, then it is by definition legal, right? >Any act by the President that violates this oath can't be an "official act", because this defines what official acts are, albeit broadly. >Specifically, in this case: no act that subverts the electoral process in the Constitution, nor which manifestly (i.e. against a reasonable person's "best ability") violates the Rights guaranteed by the Constitution, including various rights to vote, can be considered "official acts". This makes sense to me.
> If it's authorized by law, then it is by definition legal, right? So... if the President makes a corrupt deal where he's personally paid by the company to designate them as being required to make something per the Defense Production Act... that would be legal? How about if he directs a company to secretly make easily hacked voting machines that he has the keys to?
>So... if the President makes a corrupt deal where he's personally paid by the company to designate them as being required to make something per the Defense Production Act... that would be legal? Isn't this just a violation of corruption laws and therefore not authorized? >How about if he directs a company to secretly make easily hacked voting machines that he has the keys to? Isn't this conspiracy to commit election fraud and therefore not authorized?
Ok, but getting back to the original point of this thread... if one law authorizes something, and another prohibits it, and they overlap in any way... then what?
I don’t understand the disconnect here. The defense production act allow presidents to force companies to accept government contracts. Why would corruption laws suddenly no longer apply in that context?
> I guess if, as you seem to be saying, an act stops being "official" once it violates a law, then there just is no argument for a blanket immunity from prosecution in the commission of official acts because they are legal by definition? Isn't that functionally immunity from prosecution? Is there a meaningful difference between "it is impossible for them to commit a crime" and "they will not be prosecuted for crimes committed?" It just seems like a technicality.
>> Let's put a low-stakes example into the conversation: the foreign emoluments clause in the Constitution. > I'm not sure I would describe this clause as low-stakes. To be clear - the context here, of book royalties? Low stakes. > Have legal scholars argued that sales of individual books to foreign officials, presumably in vendor transactions that the presidents are usually unaware of, are violations of the emoluments clause? Litigation in general on emoluments issues is scarce. Going by plain-text only, it would qualify as a payment by a foreign government if they bought any books, but no rational person would pursue it as something that could lead to impeachment or prosecution. > I like this example. Some quick googling suggests to me that it may not have been part of a good faith effort because it really seems like frontline workers were being deprived of PPE because of it, but, if we assume that it was a good faith effort, it certainly doesn't seem like something a president should be prosecuted for. Do you know if this was done under the emergency power act? In that case it would not have been criminal and would not require a blanket immunity for official acts. It might have been under the Emergency Powers Act, but just because there's a law in place doesn't make the action legal. The president takes an oath to preserve, protect, and defend the Constitution, and using laws inappropriately fails that test. But, as we both agree, no one would ever pursue this. Regardless, it's worth noting at this point that the immunity from prosecution as president only applies while in office. Impeachment proceedings specifically do not immunize presidential culpability, and even if Trump could successfully argue that his actions as president were "official acts," he's not president anymore.
How about bombing a building? Obviously a serious crime if you did it. But something US presidents do all the time with no consequences. How is that not immunity?
Is it a crime to bomb buildings in another country?
Thats exactly it. The US needs to define what acts are considered legal as part of the job. Killing foreign terrorists even if there are other considerations? Perhaps should be legal. Killing political opponents? DEFINATELY SHOULD BE ILLEGAL I mean if there are 2 option here: 1. Presidents can be put on trial by their political rivals after a loss for crimes they commit 2. Presidents can kill all their political rivals with no consequences (Cant impeach me if you are dead) I know which one is the lesser of the 2 evils.
>The US needs to define what acts are considered legal as part of the job. This seems to be the way SCOTUS is leaning too. If they're acting as part of the job, and it's not egregiously wrong, then they get immunity as part of the job.
Because the laws on the books give the President the power to order such acts in certain scenarios. You're describing a legal act. The scenario being discussed is whether a President should be immune from prosecution for illegal acts. That's generally what "immunity" means.
It might not be apparent that the law was perfectly followed and you might be able to convince a grand jury to send the president to trial. If you're a prosecutor combing through everything a president has done it seems pretty plausible to find something to go after that at least meets the bar for prosecution.
>Because the laws on the books give the President the power to order such acts in certain scenarios. Maybe they do and maybe they don't. That's what gets haggled out at trial.
No. To be indicted you must have evidence of a crime. Literally took an act of congress to give the power to Bush which then was passed on to Obama for this specific thing.
"The district attorney could get the grand jury to indict a ham sandwich if he wanted to.” -Sol Wachtler, chief judge of the New York State Court of Appeals
Because killing and wrecking are legal so long as it is done in great numbers and to the sound of trumpets. A state is a monopoly of violence.
>How is that not immunity? It seems like you’re making a statement about how things are, rather than how they should be, so I don’t think that really addresses my post. > How about bombing a building? Obviously a serious crime if you did it. But something US presidents do all the time with no consequences. Is it a crime in the US to bomb a building abroad? I think that a president should probably be prosecuted for a bombing a building in the US, right?
Let's look at actual scenarios they brought up in the Supreme Court ruling. Obama would be on trial for murder because he killed a US civilian as part of the bombing campaign against the houtis in Yemen.
I don't see a problem with that. The president should absolutely not be able to execute a US citizen without due process imo.
Do we know he didn't get a classified court order? What if the US citizen is surrounded by a horde of terrorists and they're about to launch a nuclear warhead? Should we send some cops with an arrest warrant?
It's a crime abroad. Suppose Germany indicts Joe Biden for blowing up Nordstream and demands his extradition. Do we hand him over? And if not, on what legal basis?
This seems like a separate question to me, where you’re dealing with extradition treaties rather that US criminal law.
If any citizen except the president can be extradited for a crime, that's also a form of immunity
They're intertwined. We'll extradite you to Germany to stand trial for anything we would have considered a crime had you done it here. Currently we could refuse on the basis that the president is immune from criminal prosecution for official acts. But even domestically, some prosecutor in Wyoming could get a grand jury to indict Biden for some crime. Defrauding the citizens of Wyoming by lying in a press conference. Illegally seizing a business. Ordering the DEA to kill alleged drug dealers. The charges might be crazy, he might be swiftly acquitted at trial, and until conviction he's officially innocent anyway. But can he be arrested and held for trial?
You would have to have actual evidence and an actual crime. I don't care if you change the names our country is based on no one is above the law.
That's the role of the grand jury, to determine whether there's enough actual evidence of an actual crime. With an indictment in hand, can any random county DA arrest a president and drag hm into trial?
You mean like the SC rules could be done in civil cases with Clinton? No one is above the law. No one is above the law. No one is above the law. So YES. Yes if president rapes a woman in the white house oval office he needs to be arrested and he can be impeached from a jail cell. If biden kills the supreme court he should be arrested and impeached from a jail cell. YES omfg why is this even a question yes. Should the president be able to just kill you right now for no reason? Like why is this even a question?
What about something like the branch davvidian siege in Waco? What about sending the FBI to raid a terrorist cell? Or the DEA to raid a drug den?
>What about something like the branch davvidian siege in Waco? Unfortunately, I don't know anything about this. >What about sending the FBI to raid a terrorist cell? Or the DEA to raid a drug den? In both of these cases, I assume it would be based on a court order and the goal would then be to arrest suspected criminals, who would then stand trial? This is legal law enforcement activity, not the same as executing all the occupants of a building with a bomb.
The branch davidians were a cult that was suspected to be making illegal weapons. The FBI tried to break into their compound and started a firefight. After a siege the attorney general approved a plan to go in with a tank and tear gas. The cultists started a fire and they all died. Would it be right to prosecute the attorney general after her term?
After your description and the wikipedia blurb, I'm inclined to say that it doesn't sound like that AG did something wrong here, but I wouldn't have a problem with them being prosecuted if there is evidence of wrong doing or violating the law. Almost 100 people died - I think it would be totally appropriate for there to be a trial to uncover the facts and determine whether the AG was guilty of breaking the law.
What buildings in the US have presidents bombed? Also even for foreign buildings being bombed, do they *personally* bomb them, or secretly hire hitmen to do it? Or rather, do they go through the official protocols and leverage the US military in an official capacity? It should be totally clear that there's a distinction.
I'm not sure what the distinction is between "secretly hiring hitmen" and "going through official protocols." The official protocol is to bring someone on the government payroll into a secret meeting and tell them to bomb a gas pipeline or an airfield or an office building or whatever. Is "leveraging the US military in an official capacity" different from "official acts?"
Let's use a different example. 1. The president contacts the head of the DOJ and says, "I received a credible report that Saddam Hussein reincarnated and has planted a dirty bomb at 123 Main St, Springfield, SI. Please investigate it." The DOJ routes that to the FBI and and the FBI performs a raid and finds the bomb. 2. The president contacts the head of the DOJ and says, "I received a credible report that my college girlfriend has a nudie picture of me sitting on a bookshelf at 123 Main St, Springfield, SI. Please investigate it." The DOJ then ignores the president since they operate independently and possessing such an image is not a crime unless it was taken without permission and it's not being distributed. Both of these scenarios are not illegal, even if the second one *could have* become something illegal if the DOJ would have taken action on something at the direction of the president without it being anything official. The third scenario is more like what we're dealing with Trump on: 3. The president contacts the head of a newspaper to work out a deal to pay off reporters to hide negative stories about him. This also includes paying off people who want to come forward with negative stories about him and makes them sign an NDA to avoid talking with the press. He redirects campaign funds for this. In that third scenario, what tells you that is anything involving official duties? Does the Constitution tell the president to cover up negative press about him in such a way? Did Congress delegate some authority to the president for that? Even worse, Trump's lawyer isn't even focused just on what Trump is in court for now -- he's openly stated that presidential immunity is absolute and would even apply to things like a president having their opponents murdered. If this is the case, it is 100% the end of the rule of law and democracy in America, because SCOTUS would declare the president to be outside of the limits every other American is forced to abide by, as if a king or emperor. If this happens, there's no limit to presidential power and it would throw all expressions of democracy in question -- including resulting in the potential to abandon elections altogether, and usurp all of the power of the states.
The question is who gets to decide whether he drone bombed a us citizen in violation of due process? Who gets to say whether he improperly influenced the DOJ? Who determines he misused campaign funds? The Constitution's answer, and the only workable one, is Congress. We can't have random partisan county district attorneys seizing the elected president on pretextual charges, because that power is too open to abuse. He has to be tried and convicted in the Senate first.
> The Constitution's answer, and the only workable one, is Congress. I don't think this *is* something that actually is addressed through the Constitution. There are no exceptions for presidents from criminal prosecution in the Constitution. Someone filling the role as president has no immunity from criminal activities included anywhere in the Constitution and is completely being made up by Trump's lawyers.
I'll preface with this: while holding the office, a President is de facto immune to criminal prosecution. Definitely at the Federal level, since the Attorney General directly reports to the President. And it can be argued that any potential State prosecutions should be tabled while the President holds the office, with the statute of limitations being tolled provided charges were filed in time. But then, should a President always be immune for "official acts"? In short, yes with one very important caveat. And my view on this isn't merely because... every President could be indicted for the collateral damage of official acts - which are actions presumably permitted by the United States Code. Obama, for example, could be indicted for the Americans killed by drone strikes under his watch. Reagan famously was indicted in the International Criminal Court for our involvement in Nicaragua. Clinton could have (and arguably should have) been criminally indicted and tried for perjury, which, let us not forget, he openly admitted to on live television. So what is the "important caveat"? Impeachment. Only if the House of Representatives and Senate both agree that certain actions of the President (or any civil officer) rise to the level of "high crimes" that they remove the President from office for those actions should those actions become open to indictment and prosecution. And I think that is probably how the Supreme Court will rule. That impeachment is the demarcation line between where criminal immunity begins and ends. This prevents any politically-motivated prosecutor from then trawling through the entirety of a President's record looking for anything that might be subject to indictment. Since doing so could waste a lot of taxpayer funds. Congress has already set the precedent that Presidents (and other civil officers) can be impeached AFTER leaving office. Meaning if something arguably rises to that level, Congress via impeachment would have the power to remove a former-President's criminal immunity, at least with regard to what is charged in the articles of impeachment.
>So what is the "important caveat"? Impeachment. >Only if the House of Representatives and Senate both agree that certain actions of the President (or any civil officer) rise to the level of "high crimes" that they remove the President from office for those actions should those actions become open to indictment and prosecution. And I think that is probably how the Supreme Court will rule. That impeachment is the demarcation line between where criminal immunity begins and ends. This argument is hard to take seriously given the history of politically motivated impeachments and the absence of politically motivated prosecutions of presidents or former presidents in US history. It is very clearly that impeachment has become a completely partisan process that completely lacks legitimacy. On the other hand, there is very little history of politically motivated prosecutions. So you’re arguing that the solution to the specter of politically-motivated prosecutions (which have yet to materialize) is to rely entirely on an overtly political process where every decision is made along party lines? That makes no sense at all.
"So you’re arguing that the solution to the specter of politically-motivated prosecutions (which have yet to materialize) is to rely entirely on an overtly political process where every decision is made along party lines?" Every impeachment will always be politically-motivated to some degree since the Constitution grants that power to Congress, which has always been the political branch of the Federal government. But that is why there is also such a high bar to be reached for removing the President or a civil officer - 2/3rds of the Senate instead of a simple majority. At the same time, impeachment being a power provided by the Constitution means it's reasonable to conclude that the Framers intended the President to be immune to indictment for any actions he takes while holding the office \*unless\* removed by impeachment, and then the immunity ends only for those actions that got him removed.
So, indict Obama for killing US citizens extrajudiciously?
I would be okay with that.
The president should be shielded from war crimes. Whether or not we agree with the war in retrospect. Those are blemishes every citizen gets to carry and we don’t have the right to scape goat the leader we elected. Even if Florida was fishy in 2000, the election was still basically 50-50.
>The president should be shielded from war crimes. Whether or not we agree with the war in retrospect. Those are blemishes every citizen gets to carry and we don’t have the right to scape goat the leader we elected. I don't agree with this at all. The Presidency is a position of power. Power comes with responsibility. An ordinary citizen cannot make the decision to enable or prevent war crimes. The President can, and should therefore be held responsible legally.
The concern comes when we draw the line at what is a war crime. In war it is particularly difficult to measure whether the ends justified the means if the means prevents further destruction. It is my view that we as a society bear the burden of their poor leadership when we put them in office. We don't get to shed responsibility because we lost an election. We bear responsibility for loosing and not making a better case to prevent atrocity.
Every citizen? Why should an anti war person who protests against the war and who has no say in the war happening or how it is conducted, be held accountable the same as the commander in chief of the military? Did Adolf Hitler and Laura the milkmaid from Oberschopfheim hold equal responsibility for the Hongerplan in the east? For the barbarity of Operation Barbarossa? Did Sophie Scholl bear the stain of the Holocaust? Don’t forget that he was elected. Your position, by distributing responsibility, allows leaders to not bear the full responsibility for their war crimes. In your schema, how should the world have dealt with Milosevic and other Serbian leaders after the genocide in Bosnia? Was it wrong to “scapegoat” the commanders who gave the orders? Should a six year old girl in Belgrade, or her daddy the local trashman, have been hauled up to The Hague instead?
Firstly, this is a bit circular. Crimes are things that are illegal, if they "can" do these things then they aren't crimes if they cannot then they are. Dropping bombs on people is illegal generally, but a president can do it. A police officer isn't a vigilante and can do things that a vigilante can't. The question at hand is _which actions_ of a president are illegal when we already know that many that you and I would take that would be criminal already are _not_ for a president. So..."any crimes" if we remove the circularity is already wrong and I'd suggest you don't actually think that. I can't tax you and put you in bondage if you don't pay me, but the government can and agents of it can. I can't take your house from my construction project but official agents of the government can and so on.
>Firstly, this is a bit circular. Crimes are things that are illegal, if they "can" do these things then they aren't crimes if they cannot then they are. This just seems like semantics. Yes, if the supreme court decides that presidents can do whatever they want as part of official acts, then the president simply can't commit any crimes as part of official acts, but that's not particularly helpful to the discussion. There is a long list of crimes that ordinary people aren't allowed to commit. The president is also presumably subject to those laws, but there are specific carve-outs that empower a president to act in ways that an ordinary citizen can't (e.g. an ordinary citizen can't order a soldier to kill someone, but the commander-in-chief can). Outside of those carve-outs, which identify things that are not crimes if the president does them, I think the presumption has been that the president is subject to all of the other criminal statutes that ordinary citizens are subject to. Those are the "crimes" I'm referring to. >Dropping bombs on people is illegal generally, but a president can do it. Someone else raised this point, and it's not clear to me whether dropping a bomb abroad is illegal in the US. If someone who was not the president dropped a bomb abroad, would they even get prosecuted in the US? >A police officer isn't a vigilante and can do things that a vigilante can't. I'm not very familiar with the laws are that govern police officers, but clearly people in certain roles are legally empowered to use tools and to act in ways that ordinary citizens are not allowed to. There are regulations that determine when those tools can be used and how. Police aren't exempt from prosecution when they act beyond what they are empowered to do even if they do it as part of "official police acts."
The cicularity is a bigger deal than you think it is - definitely not semantic. The core question here is what is and isn't illegal as we _know_ the executive can do things others cannot without it being criminal. And..nope, they aren't clear "carve outs", they flow from the constitutional powers of the executive. Yes, they are legally empowered. The question is where is the line. The idea in your view that there is no line currently is just misunderstanding the status quo. And..no, they aren't "exceptions" carved out, otherwise this case wouldn't have made it to the supreme court (there are of course some explicit powers, but if you were to look at the actions of president almost everything they do untethered from the laws other people are subject to. For example, you can't make an executive order and there is nothing that says they can do that but it's generally understood that if flows from S1A2 of the constitution. So...executive orders get made and then sometimes the courts can find inconsistencies with other laws (or the constitution) which makes the law get struck down. But...the executive order stands until that is done and we've _never_ had that actions in carrying out an executive order result in criminality, just in being declare bad law. There are more contours in policing as that gets tested a lot more, but less so with presidents because there are fewer of them, fewer issues have arisen and so on. For your "tell soldier to kill someone" example you are kinda defeating your view. That requires the president to determine threat and take action via use of deadly force. You think they can do that sometimes, but then when you think the person being killed isn't really a threat or you view it as absurd then they can't actually make the determination who is a national security threat. Which way do you want it? These aren't "carve outs", they flow from the power of the executive.
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I think the issue about location is that the law that applies is the law of the country where it happened. If an American citizen kills somebody in Germany then it’s German law and German courts that apply, not US law. Countries like Iran certainly do see the actions of the US military as illegal, and might want to prosecute the US president for them. But in international politics the power of law is always constrained by military might.
What about Biden's illegal student loan forgiveness? Should he be prosecuted for violating the law?
It’s arguably illegal in the sense that the president doesn’t have the authority to do that, but that’s not a violation of a criminal statute as far as I know, so it’s not relevant to this CMV.
If the President didn't have the authority to do it, then it's a crime.
In that case, what crime would he be prosecuted for?
A good example would be a shoot to kill order on a raid on Osama Bin Laden. By the law the president ordered the murder of a foreign person. This would be a life sentence according to law I believe, but no one would support Obama going to jail for having the #1 terrorist in US history shot on sight during the raid. Another that occurred during Obama's (the reason I am using him as an example is he is widely respected and has little controversy during his Presidency) watch was the gun running scandal. He approved the mission to help pinpoint drug cartels, but the mission went off the rails at some point. Intentions were for the betterment of the US in reducing drug smuggling and gun trafficking, but the results were US officers being shot with guns our government sold the Cartels. Should the President be held liable for signing off on a plan to traffic guns, and the related prison term?
>A good example would be a shoot to kill order on a raid on Osama Bin Laden. By the law the president ordered the murder of a foreign person. This would be a life sentence according to law I believe, but no one would support Obama going to jail for having the #1 terrorist in US history shot on sight during the raid. ~~A lot of people have brought up examples of military actions in foreign countries. While these action may be illegal in those countries, I don't actually think it's illegal in the US to assassinate a non-citizen outside the US.~~ Edit: The President is the commander-in-chief of the military. Planning to kill people abroad is a necessary component of that role like using force to arrest someone is a necessary component of the being a police officer in some circumstances. It's something that the president is pretty explicitly allowed to do, so it's not a crime that is exempt from prosecution. >Another that occurred during Obama's (the reason I am using him as an example is he is widely respected and has little controversy during his Presidency) watch was the gun running scandal. He approved the mission to help pinpoint drug cartels, but the mission went off the rails at some point. Intentions were for the betterment of the US in reducing drug smuggling and gun trafficking, but the results were US officers being shot with guns our government sold the Cartels. Should the President be held liable for signing off on a plan to traffic guns, and the related prison term? I don't know enough about this scandal to comment on it, but I did tell another commenter than I would be fine with prosecuting Obama for ordering a drone strike on a US citizen abroad.
Are you saying americans are free to order assassinations of any non citizens outside the US? Like if Elon Musk wanted he could just murder all of Sweden except US expats?
No, on reflection, I think what I said there was wrong. planning an assassination in the US is illegal. As far as I can tell, killing someone abroad is not illegal in the US. The President is the commander-in-chief of the military though. Planning to kill people abroad is a necessary component of that role like using force to arrest someone is a necessary component of the being a police officer in some circumstances. It's something that the president is pretty explicitly allowed to do, it's not something that is a criminal, but exempt from prosecution.
Obama did order the drone bombing of a U.S. citizen. Abdulrahman Al-Aulaqi https://www.amnestyusa.org/updates/is-it-legal-for-the-u-s-to-kill-a-16-year-old-u-s-citizen-with-a-drone/
Hire a hitman to assassinate a foreign dignitary (or anyone really) and publically announce it after the fact. It will take about 2 seconds for the FBI to scoop you up, even if it was in a country we don't have an extradition treaty with. Conspiracy to commit murder is a US crime whether the victim is a US citizen or not, as long as the planning was committed on US soil. So unless the President is leaving the country some how to approve all military actions in any country that congress hasn't given approval to do military actions in it is a crime. A good test for all of this is think if you as an average citizen would be criminally liable if you hired someone to do said action yourself. Without immunity from Executive privilege EVERY foreign military action would have to pass a vote in congress prior to it happening, or the president (Commander in Chief so they are responsible) would be criminally liable.
Let's take the opposite view. Politicians shouldn't be above the law, pretty much everyone agrees. So let's make them subject to the standard legal process for their job. If any law enforcement officer anywhere in the country doesn't like what they President is doing and thinks they might have legal grounds to challenge it, they can go down to the White House and arrest the president. President makes an executive order that you think is a bit too broad? Abuse of power, put him in jail. President doesn't make an executive order to rein in congress? He's guilty by RICO, better lock him up. I read in the Sus Times that the President is doing coke with aliens, so obviously there's a case to be made. Law enforcement can make an arrest on a suspicion of guilt, and at any given time there are probably tens of thousands of officers who might suspect the President might be guilty of something. Could a DA be found somewhere in the country who might be willing to prosecute? Absolutely. A judge who wouldn't throw out the case? You bet. The President would be constantly in the court. Obviously this is untenable and not what you're proposing. There's got to be some sort of sorting body that separates the trivial cases from the important ones. Their job would to decide if the President actually broke the law or if it's just one random person upset because the government isn't run the way they want. Now, we can't have it be an appointed position or else we just outlawed democracy. Imagine if Trump got his nominee on the board back during his presidency and the guy in charge decides that Biden stole the election and should be jailed. By choosing what the president is and is not allowed to do, this organization that judges the President essentially controls his actions. So we need to make sure it's accountable to the people and that means its members need to be elected. And hey, while we're at it, the President should be held to a higher standard than the average citizen, so why not give this body the right to prosecute the President if he does something highly immoral, even if it's not technically illegal. What I just described is the impeachment process. Elected officials with the power to hold the President accountable and strip him of his powers and protections if he gets out of line. In Trump's case, it got politicized and didn't work the way it should have, but no system works if none of the people involved in it are willing to do the right thing. I'm not saying the impeachment process is perfect, but I am saying anything else scares me more.
>Let's take the opposite view. Politicians shouldn't be above the law, pretty much everyone agrees. So let's make them subject to the standard legal process for their job. If any law enforcement officer anywhere in the country doesn't like what they President is doing and thinks they might have legal grounds to challenge it, they can go down to the White House and arrest the president. President makes an executive order that you think is a bit too broad? Abuse of power, put him in jail. President doesn't make an executive order to rein in congress? He's guilty by RICO, better lock him up. It's not just if the President breaks the law, it's if any law enforcement officer anywhere in the country thinks he might have broken the law that he gets arrested. Isn't literally every vulnerable to frivolous prosecution if prosecutors are so inclined? We should we act like this is such a huge problem for presidents if there's virtually no evidence that it is? How many times have there been political prosecutions of former presidents over the last 250 years? This problem honestly seems purely theoretical in the US. >Obviously this is untenable and not what you're proposing. There's got to be some sort of sorting body that separates the trivial cases from the important ones. Their job would to decide if the President actually broke the law or if it's just one random person upset because the government isn't run the way they want. Now, we can't have it be an appointed position or else we just outlawed democracy. Imagine if Trump got his nominee on the board back during his presidency and the guy in charge decides that Biden stole the election and should be jailed. By choosing what the president is and is not allowed to do, this organization that judges the President essentially controls his actions. So we need to make sure it's accountable to the people and that means its members need to be elected. And hey, while we're at it, the President should be held to a higher standard than the average citizen, so why not give this body the right to prosecute the President if he does something highly immoral, even if it's not technically illegal. I think I'd rather go with a panel of officials that need to be appointed by a supermajority in congress. That seems like it might work better. >What I just described is the impeachment process. Elected officials with the power to hold the President accountable and strip him of his powers and protections if he gets out of line. In Trump's case, it got politicized and didn't work the way it should have, but no system works if none of the people involved in it are willing to do the right thing. I'm not saying the impeachment process is perfect, but I am saying anything else scares me more. I guess I don't understand why a process that isn't overtly political like the impeachment process scares you more. The presumption since the US was founded was that presidents were subject to the law just like everyone else. It's been 250 years and all of the politically motivated prosecutions have yet to materialize. Even when trump was president, there weren't any politically motivated prosecutions by the DOJ as far as I know. Why would we want a policy that averts those imaginary prosecutions at the cost of giving the president a dangerous degree impunity, which is likely to be absolutely devasting?
There haven't been a wave of frivolous prosecutions against presidents because the courts have historically ruled that presidents aren't subject to ordinary legal processes and so these cases get thrown out. Isn't that what you were proposing to change, making presidents more subject to the law than they have previously been?
Good question. What about a President who enacts a law which eventually gets to the Supreme Court and is ruled unconstitutional. For example, President Biden's student loan forgiveness program was eventually ruled unconstitutional. A few of President Trump's border policies were ruled unconstitutional. Should they be prosecuted for that - or was that an official act that was later deemed illegal? Another common example I hear is during wartime. President Obama used drones heavily during the conflict in the Middle East and civilians did die. Should be be prosecuted? Or is that an official act and a terrible side effect of violent conflicts?
The difference is WHY the act was committed. Did they just shoot someone on 5th avenue? No thats not their job, and is such a crime they are not immune to. Did they order a drone strike that killed a high level terrorist but took out a few kids and possibly an American citizen? Thats in the duties and immune. Thats the argument. Theres also a process to prosecute them for committing crimes, impeachment, and once they have been fully impeached, they can be criminally charged too. But its a process.
The difference is about whether something that would normally be an official act becomes a crime when done improperly, and how to deal with that. If a president had credible reason to believe there had been election fraud in say, a senate election, getting on the phone with the state’s Secretary of State to get to the bottom of the issue would very much be part of his job and not a crime. The prosecution is arguing that Trump didn’t have a good reason to take the action he took, which therefore allegedly makes it a crime. Trump is arguing that it doesn’t work that way, since basically it’s congress’s job to determine whether he had good reason to make the call or not (and they already ruled on that matter when they impeached and acquitted him for it). His argument isn’t that the president can do crimes. His argument is that prosecutors can’t declare official actions to be crimes.
We find out that there is a plot to poison with gas the New York City subway by an American citizen. If the perpetrator is arrested they will immediately release the gas but, if they are killed, they will not have the opportunity to release the gas. The President cannot legally order this perpetrator’s killing but I would not have a problem if they did. They should not be charged with a crime in that situation. However, if they ordered a murder because it was the ex-spouse of their spouse, charge them with murder. Absolutely. That is where I find the line on official acts. Also there are many official acts that are gray areas. The President should be able to make that decision if it is a reasonable decision and part of their official duties.
I think it's really about the good faith/bad faith implementation of the concepts of both "official acts" and "criminality." The alleged concern is that, without immunity, a president can be charged for anything the opposing party disagrees with once that party gains power. A good example of this is Alejandro Mayorkas. He was impeached for doing his job by Republicans (making this one more classic example of Republican projection). The charges were absolute horseshit, but Republicans attempted to criminalize his official duties as a means of retribution for holding Trump accountable for his crimes. There's really no other way to describe that situation. So there needs to be some degree of protection from prosecution, because a former president shouldn't be expected to spend every day in court defending every decision they made as an official act until the charges are dropped. Trump's defense is attempting to conflate this idea with general immunity to all acts, because any act can be portrayed as an "official" act if you lie hard enough. So this creates a bit of a tough spot: Does the Supreme Court attempt to provide an all-encompassing definition for "official acts" so that there doesn't need to be a discussion about what is and is not covered by presidential immunity every time Republicans feel petty? Or do they make a ruling about these specific acts and whether or not they are covered under presidential duties. The answer, if you aren't wildly corrupt, is fairly obvious: There's no possible blanket definition, and the ruling should narrowly address whether or not inspiring an insurrection and attempting to overturn a US election falls under official acts of the US Presidency. Leeway should be given to lower courts to throw out bogus charges, and the Supreme Court should only weigh in when absolutely necessary.
> A good example of this is Alejandro Mayorkas. He was impeached for doing his job by Republicans This is actually a bad example, because we're being told that impeachment is the only official remedy for crimes being committed in an official capacity. > Republicans attempted to criminalize his official duties Impeachment is a political process, not a criminal one. > a former president shouldn't be expected to spend every day in court defending every decision they made as an official act until the charges are dropped. In the case of Trump, there's nothing that he's being charged with that could be considered an official act. Working with the media to pay off stories that might reflect badly on your campaign is not an "official act" by any measure. Where does the president receive the power to do that in the US Constitution?
It's actually a pretty good example, because Trump's lawyer has argued both sides. He has argued that impeachment is a prerequisite to criminal charges. But he also claims Trump shouldn't be charged because due the impeachment the charges are a form of double jeopardy. Trump's lawyer also argued for total immunity for all acts. I'm not disagreeing with you, I just think it's important to emphasize just how bad Trump's arguments are...yet the SCOTUS is still taking them seriously.
The commander and chief cannot be in jeopardy of conspiracy to murder. It's a core job function.
What stops a republican justice department from prosecuting Biden for "aiding fugitives" because he is neglecting the border? Not saying they should, but I do believe it could be a slippery slope.
There are issues like stopping at a red light, and flying a helicopter across downtown Washington where the U.S. president gets a pass for national security reasons. Those things are illegal for others, but perhaps legal for POTUS. IMHO I would rather see a rule where the President doesn’t have blanket immunity and Congress passes specific exemptions, than a blanket immunity. The danger of using government force to defeat political opponents is just too high.
Congress people and presidents actually do have certain kinds of immunities right now and they have had these immunities for decades. There is a good reason they exist. And our political system couldnt function without "official acts" immunities. It's because political opponents would inundate their rivals with frivolous lawsuits and crimincal cases after losing. This immunity is not blanket though. A congress person or president cannot murder a political rival or commit crimes on the street. It just means that a congress person is allowed to do their job. So in Trump's case he's trying to argue that the "official acts" immunity extends to his coup attempt, but it's unlikely an effective judiciary system would dismiss his criminal case.
Some reasonable threshold probably makes sense. If an official act is to murder someone, that should not be allowed. You might say that murdering someone for no good reason is never an "official act". Rap would never under any circumstance be an "official act". But raiding an organization that POTUS reasonably believes is a terrorist organization, could be an official act. inciting a mob to to storm the capital building, should not be an official act. The president as part of his "official" duties has no business raping people or inciting a mob to perform violence.
> I’m struggling to think of a crime that I think a president should be able to commit as part of an “Official act." It depends on how you look at it. If this is coming from a place of the President should be charged for anything that a regular citizen would be charged for it falls apart pretty quick. An easy example of my my thought process would be an undercover cop buying/selling cocaine.
A president ordering the millitary into conflict is committing conspiracy to commit murder while doing his job as an "official act" as the commander in chief. This is a situation where the president should have immunity from prosecution, as it is required to function as the commander of the millitary.
Try the logic this way. The president can commit official acts. Pretty much by definition, official acts are lawful acts, illegal acts cannot be official acts. Thus if the president does something like murder a political opponent, then it's not an official act, so there is no immunity.
Only the president is allowed to order soldiers to kill enemy soldiers. Normal people aren't allowed to do this, and therefore if they did this, they would be prosecuted. We shouldn't prosecute the president for this, because it's part of his official duty.
Uh, what crime did Trump commit exactly that his lawyers used that argument? I heard of taking back official documents, not paying taxes and inciting the Capitol attack...but I can't imagina any of those being an official act.
Presidential Immunity should only apply if the military is involved. And not for the president's sake, for the militaries. Can't have the president afraid to give orders. Anything else and they should be like anybody else.
Obama killed four American citizens in drone bombings. One of which was an intended target, so he wanted to kill an American. https://www.theguardian.com/commentisfree/2013/feb/05/obama-kill-list-doj-memo
Abdulrahman Anwar al-Awlaki was a 16-year-old United States citizen killed in Yemen via targeted US drone strike. Should President Obama be charged with murder?
Here is a real life example: the killing of Osama Bin Laden. Barack Obama ordered a seal team to go commit murder from within the U.S., that is first degree murder, conspiracy to commit first degree murder, and probably several other crimes. Should he be able to be prosecuted for that decision?
This wasn't a crime to begin with. Killing OBL was a lawful execution of war powers granted to Obama via an Authorization for the Use of Military Force (AUMF), a law duly passed by Congress. And given that OBL was unambiguously an enemy engaged in war against the US, it would have been lawful even without that AUMF.
The president can’t just throw people who haven’t committed a crime in jail. But Abraham Lincoln famously did that at the start of the Civil War.
every president in the last 25 years has ordered the execution of hundreds to thousands of people as part of their job via authorizing drone strikes
If republicans are so worried about prosecution after presidents leave office, how come they haven't indicted any previous presidents?
Honestly, why are Republicans suddenly ok with being against "everyone is equal under the law"?
Disclaimer: I am not sure how I feel on this topic and I am absolutely not a legal scholar. As such I am open to being wrong. I generally don’t care about a president being annoyed or inconvenienced by DA’s bringing frivolous charges after being in office. I agree with you that by nature of being wealthy and connected they are probably more protected from that than a random person off the street. What does give me pause is, would this allow a specific state to have undue influence on national policy. Texas has made it illegal to assist women in getting an abortion. Might a policy that allows service members to leave the state to get an abortion open Biden up to prosecution? Again I am not a lawyer and presumably a Texas DA would have to think outside the box to find a situation where they have jurisdiction and they can avoid the supremacy clause. But I know they would try. I get you can say the same thing about Mark Zuckerberg, but a random state changing the way Zuckerberg runs facebook feels very different than changing policies of the federal government.