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Others have done an exhaustive job of responding to your vibrant hypothetical. I'll just add that yes, you're right in general (regarding other fact patterns that aren't quite so dramatic) that there is some increased risk of presidents misbehaving if they are above the law, and there is a cost associated with that.
But there is also a cost associated with presidents facing criminal charges after they step down. Peaceful transfer of power is a remarkable thing that we shouldn't take for granted. You really don't ever want a president nearing the end of his term to have to decide between sacrificing himself to the criminal justice system or attempting an auto-coup. That is a much bigger risk, and cost, and the law should focus on mitigating that second risk over the first.
My first impression is that presidential immunity is bad, and it looks bad that the decision was made by justices that Trump appointed but, on the other hand, the democrats are, in my opinion, abusing the law to hurt Trump and his campaign. The alternate perspective is that every case levied against Trump so far was completely justifiable and rational, but I don't believe that. So I think any democrat complaining about this decision has no one but their party and their strategy for dealing with Trump to blame.
And the Court of Appeals for the D.C. Circuit. I think if they'd come up with a lesser version of Presidential immunity -- perhaps Barrett's, perhaps something with no absolute immunity at all -- the Supreme Court might have been tempted to just accept it. But they went for nothing, and that clearly wasn't going to stand. I think if it weren't for TDS, this would have been 9-0 for some form of immunity for official acts.
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Why should I think that the second risk is greater than the first? Your post says that it is so, but provides no argument why that is the case.
Because the stakes are much higher
I don't see how. Can you explain?
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He would only face that choice if he were protected from prosecution while in office, which he should not be.
So then any DC prosecutor with a taste for power can try making his bones by filing grand jury indictments against the President. Even if they’re frivolous charges, the President’s staff and lawyers would have to respond, comply with subpoenas, etc. And considering the District of Columbia has such a liberal body politic, Republicans would stand no chance if the case proceeds to a jury trial.
The constant filing of trivial and/or frivolous ethics complaints is what drove Sarah Palin out of the Governor’s office in Alaska. The cost in time and money were a form of legalized harassment, a sort of Denial of Service attack on her ability to govern. Avoiding the same thing happening to the President should be a priority, given that his duties include things like wars, treaties, and emergencies in and outside the country.
What protects anyone else from frivolous charges?
Most people are not nationally important, and lawsuits are expensive.
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Given that those were not criminal prosecutions with the risk of jail time, that is much closer to Jones vs Clinton (where SCOTUS ruled that lawfare against a sitting President was just fine) than United States vs Trump.
But once criminal prosecution and jail time are on the table for official acts allowed by the Constitution to the President, either in office or once he leaves, harassing lawfare gains teeth it didn’t have before. Hence immunity.
The public interest in preventing harassing lawfare against private citizens (including ex-Presidents) is a lot weaker than the public interest in preventing harassing lawfare against a sitting President.
If Obama had been brought up on criminal charges following his terms (let’s say serially for Benghazi, Gaddafi, and Operation Fast and Furious, off the top of my head), the public would absolutely care.
They’d be worked into riotous fervor by the media: “How dare they try to make the first Black President into a felon! This is a banana republic! Obama did nothing wrong! He was just doing his Constitutionally mandated duties, no matter how things turned out!” And so on, and so forth.
The “public” doesn’t care because the progressives want Trump to die in prison and the conservatives don’t have time in their workdays to go protest.
EDIT: I realize you said “public interest” as in the stakes the country has in each scenario. I disagree, because of the spectre of an end to the peaceful transfer of power, the very thing constantly hung around Donald Trump’s neck re Jan 6.
That’s not a very good analogy. What would be the charges?
I don’t believe Trump is being charged either for his foreign policy, or for his handling of law enforcement.
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He'd also face that choice if his own attorney general weren't inclined to prosecute him but the next one might be
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I am not, in principle, opposed to some level of presidential immunity but the court's decision today is insane. The President is a public servant and if they abuse their office to benefit themselves at the expense of the public, that conduct should not be immune to criminal prosecution. Instead the court today says intent is irrelevant for any official act and a whole bunch of official acts are just unreviewable as such. Some tin pot dictator drops a cool billion dollars in the President's bank account to get the US military to help him out? No bribery charges there! Maybe you get impeached but whatever, you got your billion dollars!
Given the fact of the way Presidents have historically acted and the absolute lack of criminal prosecutions until the latest one I am inclined to think the problem is that Presidents do not have enough culpability for their acts in office, not that they have too much.
It kind of seems like you're just making your rhetoric more aggressive without really responding to my comment.
I think my last paragraph is responsive? To be clear: I do not think Presidents having this level of immunity to criminal prosecution in office is necessary or desirable. I especially do not think it is necessary in order to have a peaceful transfer of power, given the ~200 years or so of peaceful transfers of power America has had without anything like this. I think the risk is much greater that Presidents abuse their office than that they face superfluous criminal charges.
Nobody tried charging an ex-President before. An ex-vice-president, yes, but not for acts in office. The last time it looked likely, Gerald Ford took care of the problem. I am sure the Supreme Court would rather have not taken this case -- you can put that squarely on the Biden Administration.
Just because someone charged one ex-President doesn't mean we can reliably predict what future practice will look like. To me, this looks like a legitimate slippery-slope fallacy. We have a clear and demonstrated history of Presidential abuse of authority, and up to n=1 history of legal harassment.
As mentioned in part of the oral arguments in the case, would you like to look up impeachment through history and how quickly political parties will play tit for tat?
Ok.
The first Presidential impeachment was of Andrew Johnson, a Democrat, in 1868. There was no subsequent retaliatory impeachment of his Republican successor, Ulysses S Grant.
The second Presidential impeachment was of Bill Clinton, a Democrat, in 1998. There was no subsequent retaliatory impeachment of his Republican successor, George W Bush.
The third and fourth Presidential impeachments were of Donald Trump, a Republican, in 2019 and 2021. There has so far been no subsequent retaliatory impeachment of his Democratic successor Joe Biden, and it does not appear that there will be.
What's your point again?
There was an impeachment of Mayorkos and of course an impeachment probe into Joe.
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