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PaperclipPerfector  4mo ago (text post)   29944 thread views

Culture War Roundup for the week of July 1, 2024

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I'm not too concerned about the military implications.

On the other hand: Did Trump v. United States legalize bribing the President?

If the President has absolute immunity for discussions and actions relating to his constitutional prerogative, and bribery requires demonstrating a state of mind, typically through evidence that shows intent to bribe or be bribed, how would the Justice system examine such evidence if the President pinky-swears that it's legitimate, and is therefore subject to absolute immunity?

Did Trump v. United States legalize bribing the President?

No. The briber would still be prosecutable. And the President could be prosecuted for taking the bribe. Under the majority's decision, the prosecution could not use any official acts that the President took as a result of being bribed as evidence, which would make the quid-pro-quo difficult to prove; this is what Barrett had a problem with. I think she was right on the law but wrong on the stability of the nation; the majority's rationale was that prosecutors would use anything short of such a prohibition as a way to do an indirect prosecution of official acts, and I believe they are correct. At least if the President is someone they particularly want to go after for political reasons.

I realize now that I should have been saying de facto legalize. Yes, bribery is still illegal, and it can still be prosecuted, but it's very hard to go anywhere with that prosecution if the President can declare the initial act of discussing a bribe as part of his authority to seek opinions from his officers, thus rendering it subject to simple absolute immunity, and preclude the court from considering it (including for the briber, for what it's worth). Barrett's objection concerns the quid-pro-quo evidence created by the President after agreeing to a bribe; my concern is with the impossibility of demonstrating the President's (or his briber's) mental state, a necessary prerequisite for a bribery prosecution, when the court is explicitly disallowed to consider it.

The President cannot declare the act of discussing the bribe with the person bribing him as an official act. Unless he's being bribed by one of his officers in the course of seeking opinions from them. President: "Hey, should I pardon this guy? Secretary of Agriculture: "If you do, I'll give you this nice painting of a cow I got on my last trip home".

Congress could impeach.

This is susceptible to last-day shenanigans - if Congress can't impeach you fast enough, do you get away with it?

This is why presidents issue the bulk of their pardons on their last day in office.

Moreover, if the president does something heinous on the last day of his administration, what's stopping the next president from ordering the DOJ to prosecute and investigate? What's stopping Congress from issuing a subpoena and hauling the last guy in? What's stopping a federal prosecutor from opening a case and bringing charges? This is all baked in. All this ruling means is that, in the ensuing legal battle, your last-day president gets to argue that what he did was an official act.

what's stopping the next president from ordering the DOJ to prosecute and investigate?

Nothing, they just can't build a case if it depends on evidence precluded by simple absolute immunity.

What's stopping Congress from issuing a subpoena and hauling the last guy in?

The aforementioned simple absolute immunity.

What's stopping a federal prosecutor from opening a case and bringing charges?

Aside from bribery cases being guaranteed to fail in the absence of evidence of mental state, nothing.

For bribery specifically, you must prove the President's mental state of knowingly taking a bribe. The majority ruling explicitly forbids the courts from considering the President's mental state when determining if actions taken under the powers granted by the constitution are improper. And the president talking to his executive officers is explicitly a power granted by the constitution. So if the President says he wasn't taking a bribe, he was just talking with his officers... End of story, this crime cannot be prosecuted because evidence to the contrary is subject to absolute immunity, and is required for conviction.

What good does it do to prosecute a case if, by definition, you are guaranteed to fail?

And the president talking to his executive officers is explicitly a power granted by the constitution.

At this point, the President would have invoked executive privilege, and Congress would have launched an impeachment inquiry, or campaigned on doing so.

But again, this does nothing. There's no declarative requirement for the President to e.g. invoke executive privilege. The President has absolute immunity for seeking opinions from his officers, it's not something he has to argue, he just says he was seeking an opinion and that's the end of the discussion; you can't subpoena parties or submit records of the conversation as evidence, and without that, you have no evidence of bribery. And as far as I can tell, impeachment (even after leaving office, which is out on a limb at best) doesn't strip absolute immunity. There is no legal battle, because the required evidence to prove a crime or any circumstances under which immunity wouldn't apply, impeachment or otherwise, cannot be considered by the court.

  1. That probably already happens with pardons. See Bill Clinton.

  2. There is a discussion of whether there can be a post presidency impeachment. I see why not if doing so is a necessary step to remove the immunity.

  3. The flip side is with the right venue shopping the opponents can easily make cases against the prior president. That seems like a bigger problem compared to obvious corruption.

  4. I think the easy ruling should’ve been “when president is acting qua president he cannot be sanctioned until impeached and convicted.” The impeachment process is the closest thing to a true jury of peers.

The outcome of an impeachment is, at worst, removal from office. Nothing about impeachment appears to grant anyone authority to strip absolute immunity conferred to actions taken pursuant to constitutionally granted powers of the President while the President was President.

ETA:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

I'd read that as allowing subsequent prosecution, but not somehow removing absolute immunity from actions taken while still the President. If not, you could plausibly impeach and try every president immediately after they leave office, or whenever an opposing party gets a majority in the Senate, for crimes even intended to be obviated by the president's official powers. In which case, why grant immunity at all?

Let me respond to your edit.

  1. I don’t think the structure of the sentence suggest a separate unrelated offense. The first part of the clause tells us that impeachment and conviction goes no further than removal from offense (ie there is no jail sentence). We then told however that if the law brings the president up on charges he now could be subject to a jail sentence. The natural read to me is they are talking about the same offense (ie what would be the relevance of a future crime). No I think this is to head of discussions that the first crime was already adjudicated.

  2. The constitution requires if memory serves 2/3 of the senate (ie super majority). It would be pretty much impossible to have a conviction absent bipartisan support whereas with the right venue the ex president could be subject to criminal liability purely by his partisan opponents.

The constitution clearly delineates between "Law" and "Impeachment", and the two are unrelated. I see the word "nevertheless" here meaning "this clause is about impeachment, not about the method of criminally prosecuting the president in spite of their absolute immunity", rather than "but if you remove them from office, you can now also do this other stuff".

I could be wrong, and if so I think you make a compelling argument for what right looks like.

Edit: See The_Nybbler's point here.

I agree there is a delineation. But given that no where does the constitution mention absolute immunity, it seems like a reasonable way to square the circle here given that ultimately this is a question of separation of powers.

I think the idea would be that if Congress determines those actions were high crimes and misdemeanors, then they were ultra vires and therefore not entitled to immunity.

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