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PaperclipPerfector  4mo ago (text post)   29975 thread views

Culture War Roundup for the week of July 1, 2024

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1 - 3 seem relatively reasonable (though 2 is more deferential than I think is necessary). However, 4 is the big "What the hell?!" to me. It strikes me as a poison pill meant to make the whole thing nearly impossible to prove.

Say you think a President took a bribe for an ambassador. They could theoretically be prosecuted for that. However, any communication he might have had is pretty much immune from evidence-gathering. The Supreme Court also said you cannot put him on the stand and ask him under oath if he hired the guy because of the bribe.

I'm legitimately curious at how this is supposed to work, outside of said President being so stupid as to broadcast his crime on prime-time TV.

Hence Barrett's opinion.

Does it even matter if he broadcasts his crime on prime-time TV? He could be there in his official capacity and thus the broadcast can’t be used as evidence for any wrongdoing.

I don't think an act becomes qualified as an "official presidential act" merely by the president appearing on TV, saying "I'm the president!," and committing a crime. There would have to be an argument that the crime was somehow necessary to the duties of his role.

Let's say one of a President's official duties is signing bills. While signing bills, his pen runs out of ink. The President then grabs his nearest aide, chops off the aide's hand, and signs the bill with the aide's bloody wrist stump.

The crime may have been committed during the execution of an official duty, but the crime is not necessary to the execution of the duty. Even assuming that another working pen could be not found without a run to Office Depot, the crime would still be egregious compared to the inconvenience of waiting for a new pen. This seems like an easily prosecutable crime because the infringed right of the aide outweighs the convenience of finding a writing utensil.

The same goes for the Seal Team Six scenario: Executing one's political opponents is not a necessary function of the president performing a duty. Whatever duty was being pursued surely has less-illegal remedies at the president's disposal.

Okay, but let's say there is a weak argument that the crime was necessary to his duties. How do you disprove it? You would want evidence, but the bad argument also makes it an official act until proven otherwise, meaning you can't effectively investigate it.

But is there a carve out for things "not necessary to the execution of his duty?" I don't believe there is, since that seems to directly go against this recent court decision. The judiciary wouldn't get to decide whether a specific implementation is "unnecessary" or "too-illegal." The president gets a presumption of immunity for all of his official duties, however he chooses to discharge them. The alternative just makes the decision moot because any prosecutor can just claim that a specific action is a "too-illegal" remedy to get an indictment.

So, yes, under this decision, I believe that, since the president can direct our troops, he can order Seal Team Six to execute his political opponents. The ordering part is the official act, and is immune to prosecution.

Except what the lawful orders can be issued is not preclusive to the President, but the rules for the government and regulations for the armed forces established by Congress per Article 1, and thus not immune to prosecution by the standard of the court.

The President has no authority for issuing unlawful orders, and thus the immunity argument can only apply if ordering Seal Team Six to execute his political opponents is a lawful order in the framework already passed by Congress.

Upon further research, you're likely right. This fact was not apparent to me reading through the reporting and discussions of this court opinion on other social media.

The President's authority over Seal Team Six is that of the Commander-in-Chief. He can give them orders. It's pretty well-established that there are legal orders and illegal orders and which is which is decided by Congress.

(2) Not all of the President’s official acts fall within his “conclusive and preclusive” authority. The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive constitutional authority do not extend to conduct in areas where his authority is shared with Congress.

In these areas, the Court says, he has a presumption of immunity, not absolute immunity. If the President gives Seal Team Six a blatantly illegal order like that one, and the prosecutors did a halfway-decent job, the courts would likely find the presumption was rebutted.

The broadcast isn't the act though--it displays the act. If the act itself were to broadcast something, then maybe, but I'd still say that the act in that case would be the action of broadcasting, not the contents of the broadcast.

If he's being broadcast for a presidential speech and turns around and murders someone, then his act is the presidential speech, not the broadcast. People can still use the broadcast as evidence.

Ah you’re right. I was thinking along the lines of him admitting he’s done a crime on the broadcast, not that he literally commit the crime on the broadcast.

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