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Notes -
What, you mean this case?
It doesn't appear to involve normal crimes so much as misuse of the office. Or perhaps I'm misreading. I don't see why eternal immunity from states would be on the table.
Also, wow, that sounds absolutely horrendous. Would a murder charge require Congress to convene and impeach?
It is Trump's position, as his lawyer argued both in the court of appeals and to SCOTUS, that if a President ordered SEAL Team Six to assassinate a political rival such President could not be charged with a crime unless impeached and removed.
I mean this non sarcastically— thank for adding in “unless impeached and removed.” Most all critics leave tgat bit out. But basically, it is an argument over forum.
I would also further limit the description to acts undertaken qua president and not all acts whilst president but in a personal capacity.
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That seems plainly true, but I doubt his lawyer would have picked such an example.
His lawyer was presented with that hypothetical in oral argument, and responded by reiterating that prosecution would require impeachment and conviction in the Senate first.
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It's kind of wild to be running on a platform of "my opponent can legally assassinate me", but here we are.
Of course he isn’t. The argument isn’t about legality but forum for hearing the claim.
The practical import of Trump's argument is that as long as Democrats refuse to convict Biden in the Senate, Biden can legally assassinate him.
You could of course argue that Democrats are too noble and high-minded to abuse the system in this way. But that seems like an odd argument to run alongside the claim that they have corrupted and perverted the justice system specifically to target him.
If a third of sitting senators are willing to openly endorse the assassination of domestic political rivals, we're long past the point of these sorts of debates mattering. And if the crime is either not substantial enough or not evidenced enough to convince two thirds of the Senate, maybe convicting the president wouldn't be such a good idea afterall. That seems like exactly the sort of decision we would want widespread, general consensus on, doesn't it?
I don't necessarily think such an expansive view of presidential immunity is allowed or required by the Constitution (I haven't researched the issue anywhere near thoroughly enough to have a strong opinion either way, but tend to be skeptical of governmental immunity arguments generally), but there's at least a reasonable argument that impeachment by the House and conviction by the Senate is the only mechanism for punishing the conduct of a sitting president.
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You would think many thinks would so shock the conscience of even Dems that a literal assassination order would result in impeachment and removal. If not, then inter arma enim silent leges
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You know, we never did get case law as to whether or not Obama could lawfully order the assassination of Anwar al-Awlaki (or his underage son), both of whom were American citizens outside the US. I have long thought it would be an interesting legal case if some state tried to claim jurisdiction for a murder trial, although I concede that he wasn't exactly a good guy. Sure, the DOJ wrote a memo suggesting it was a lawful act, but I don't see a good clear line between drone striking a citizen advocating the violent overthrow of the US Government and "assassinating a political rival."
I've seen lots of domestic advocacy for violently overthrowing the US Government in the last few years: can the President unleash the Predator drones on the next CHAZ protest? Is it that he was outside the country? That's not hugely comforting to anyone who travels overseas. Given that he was over the age of 35 and born a citizen, if al-Awlaki had said the magic words "I intend to run for President of the United States," thus cementing his status as "a political rival," would that magically require calling off the drones?
On the gripping hand, war (although in this case not a war declared by Congress) is messy business, and ordering attacks to cause deaths is part of the name of the game. I don't really have a great answer there. But yes, there are probably some situations in which the letter of your claim might be arguably true and no criminal trial would occur, although domestic military actions would probably swiftly lose the court of public opinion, which sometimes seems like the only one that really matters at the end of the day.
Why would you need case law? He was a trator and an enemy combatant. Some americans joined nazi Germany's army and we didn't need trials to kill them in combat.
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In court the DOJ was arguing that presidential immunity applies whenever the DOJ says the action is legal. That seems a bit hard to square legally and constitutionally, but it does sound like exactly the standard the DOJ wants.
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The individual in question was unambiguously working for a terrorist organization.
Foreign vs. domestic soil and organizational affiliation matters quite a lot.
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