It’s not entirely nuts, though. Although the circumstances where it’s not nuts aren’t necessarily present in this case.
The argument (generally) would be that Congress has a lot of power to draft criminal statutes, can draft them broadly, and might end up criminalizing something that the President should have the absolute right to do - whether intentionally or inadvertently.
For example, suppose Congress passes a law that says it will be a felony for any government official to take an action that confers a personal benefit any foreign national that is an agent of a foreign government. Seems fine. Nice general law of general application.
But then consider how that would apply to the Presidential pardon power. The pardon power is one of the most unfettered, purely discretionary powers the Executive has - and it’s well-settled that neither the Congress or the Courts has any power to restrict how he might choose to exercise it. And if Congress passed a law that said, “the President may not pardon a foreign national that is an agent of a foreign government,” the President would simply ignore that law - and correctly so. No court would ever enforce that law - and even in the one-in-a-million chance that a court did enforce it, it’s no skin of the President’s nose. So he’s completely unrestricted in issuing the pardon - the exercise of his office is not restrained by the unconstitutional law. The President has the right to pardon anyone he wants, and would be able to do so notwithstanding the Congressional law.
However, if Congress phrases that law in the form of the criminal prohibition I mentioned upthread…well, the President wouldn’t have the freedom to simply ignore it any more. Right? He might go to jail once he leaves office. Sure, he might have some defenses - but if he doesn’t have immunity in that specific context, he’s runs the risk of losing that case, and at a minimum is going to have to endure some non-trivial legal expenses. An exercise of power which is wholly and legitimately within the President’s duties, and which is supposed to be solely within the President’s purview, is now being shaped by Congress. Because criminal law is uniquely a personal risk to the individual and is always after-the-fact.
I would personally be troubled if Congress had the power to de facto put its thumb on the scale of inter-branch disputes just by adding a criminal penalty to some of its efforts to control the Executive. Presidents freely ignore various provisions of the War Powers Act, claiming that foreign policy and national defense are their purview. Regardless of whether that’s right or not, I don’t think Congress should have the ability to change that equilibrium by making violation of the War Powers Act a felony and getting Presidents to start second-guessing all their military response decisions…
My understanding, which may not be legally correct, is that the case has to do with absolute lifetime immunity for any and ALL actions by the executive.
I don’t know. Not everything that’s in the Constitution has a cause of action that would allow you, or any other person, to file a lawsuit. If you think the President is violating the obligation to “faithfully execute” the laws, or failing to “guarantee a republican form of government” to the states, you can’t go to court to enforce the claim. Those are non-justiciable questions.
They’re in the Constitution - and so Congress would probably have the power to pass a law imposing some specific things that the President has to do in order to be “faithfully executing” the laws or “guaranteeing” a republican form of government. And that law might be judicially enforceable. But the generic obligation isn’t something that is judicially enforceable, so any private enforcement would be limited to whatever Congress did. Not everything in the Constitution is subject to the judicial power.
No - the judicial branch has to apply judicial branch rules. I’m saying that it’s not unique to this issue that the legislative branch is tasked under the Constitution to exercise judicial-like functions.
I agree. And I’m confident the SCOTUS agrees as well.
The problem is that both extreme formulations are nuts. Absolute lifetime immunity for any and all actions is nuts. But no immunity for any actions ever, regardless of what the action is or the context, is probably nuts also. Congress can’t make it a felony for the President to meet with another head of state without Congressional approval, and if they passed such a law the right answer - procedurally - would be for the President to be immune from prosecution, not just be able to raise its unconstitutionality as an affirmative defense at trial.
The biggest problem our political and legal institutions have is that our norms were built around the assumption that even the worst of our presidents would adhere to some form of civic humility. Even Nixon knew when to resign and step out of politics.
Nah. I mean, this is a pretty commonsense position, when you think about how the Presidency should operate. The President shouldn’t be completely immune from all laws; but neither should Congress be able to put him at risk of a jail term if he exercises his office in a way they disagree with.
So while some commentators are casting SCOTUS’ taking up the case as being an indication that they’re taking seriously the idea that Presidents are immune from all criminal laws, it’s entirely possible (and I think vastly more likely) that there’s at least five justices who are dissatisfied with where or how the lower court drew the line between those two poles.
From what I have seen, seems the question is a matter of what constitutes an “official act”. There should not be any dispute about what constitutes an “official act” of the POTUS, as his powers are enumerated in the Constitution. But then, I remember the argument put forward by John Yoo’s “unitary executive” theory of 20 years ago, and more blatantly, in the second impeachment: 1: the POTUS sets policy. 2: whatever policy the POTUS sets needs to be in the “national interest”, as the POTUS sees it. 3: if the POTUS decides it is in the national interest to overthrow the government, then that is within his power to set policy, therefore appropriate.
Watching the events of the last 50 years unfold, I am reminded of something Tim used to say, words to the effect “the men followed their officer, out of curiosity about what he would honk up next”. I confess to staring at the coming train wreck, with considerable curiosity.
The general principle that the President controls the entire executive branch was originally rather innocuous because it was understood that the President would execute the law. However, extreme forms of the theory have developed in which the President’s wishes exceed the law. Former White House Counsel John Dean explains: "In its most extreme form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President what to do or how to do it, particularly regarding national security matters.
I don’t think so. The Circuit Court decision didn’t turn on whether any of the acts involved were “official acts” or not. The lower court rejected the claim of immunity for all acts, and doesn’t appear to distinguish between ones that are official or not:
We also have considered his contention that he is entitled to categorical immunity from criminal liability for any assertedly “official” action that he took as President — a contention that is unsupported by precedent, history or the text and structure of the Constitution.
If you’re open to the idea that the SCOTUS has a legitimate basis for granting cert., it’s probably on that point. And I don’t think it’s a moot point. Commentators have (correctly) pointed out that the President doesn’t have much of an official role in how federal elections are conducted. He’s got no official reason to be calling up a secretary of state, or organizing sham elector ballots - and things like giving the speech at the rally or filing litigation to win his cases are actions taken in his role as candidate, not as an elected official.
But one of the acts complained of is that Trump pressed the Department of Justice to conduct election fraud investigations in the states he was contesting, and to send those states letters advising them that such investigations were ongoing. Unlike most of the other actions, there is an official role for the federal government in investigating and prosecuting certain types of voter fraud. There are a number of federal statutes that are aimed at voting procedures and rules, which are enforceable by the federal government. Unlike the fanciful examples of ordering Seal Team 6 to assassinate a rival, there can be circumstances where the President in the course of his duties might direct DOJ to address election abuses - whether for his own election or members of his party or against members of his political coalition.
Unlike almost any other part of the indictment, it is somewhat understandable that one or more Justices might be a little uncomfortable with a court ruling this type of action isn’t immune from prosecution. There’s a pretty good argument that the President meeting with departmental officials, and directing them to engage in the types of actions that are within their departmental portfolio (investigating allegations of election misconduct), is squarely within the types of actions that the President should be free to engage in without fear of prosecution. Even if there’s an allegation after the fact that he did those things with improper motive, overseeing the DOJ and directing their activities is a pretty core function of the Executive. It’s easy to imagine a President in the future doing the same type of thing for a different reason - for example being told that minority voters were being intimidated or coerced when trying to vote and telling DOJ to prioritize investigating that - even if (or especially if) that investigation might benefit his own party’s chance at prevailing in an election dispute.
Most of the other stuff in the Trump argument is pretty weak sauce - but I think the conclusion that every official act might subject you to a “conspiracy to defraud” or “conspiracy to obstruct” charge is different from noting that you can’t get away with having Seal Team 6 assassinate someone.
It pivots on how broadly you define an “official act”. Investigating electoral fraud is, no doubt, withing the President’s authority. That was done, several times, in 2020, and the investigations came up empty.
The unitary executive theory, essentially used by the defense in the impeachment, is an “official act” is whatever the POTUS says it is, presumably including bullying, threatening, and inciting to riot. As defense council said in the first Senate trial, words to the effect “if the President decides it is in the national interest for him to stay in office, then anything he does in pursuit of that end, is legal”.
“If a president does something which he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” Dershowitz said Wednesday
Full transcript of Dershowitz’s presentation, stating that “abuse of power” and “obstruction of Congress” are not impeachable, apparently regardless of the scope of the abuse and obstruction. I find that assertion breathtaking, that there are no limits on Presidential ambition.
