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PaperclipPerfector  4mo ago (text post)   29967 thread views

Culture War Roundup for the week of July 1, 2024

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I’m missing something here.

No Authority Authority
Not Impeached Normal Penalties Immune
Impeached Normal Penalties + Removal ???

Can impeachment impose any penalties other than removal and barring from office? Because it looks like the President can’t be normally prosecuted even if he gets impeached.

Say the President uses his Constitutionally-required State of the Union to advocate rebellion. Nothing as innocent as Trump’s 1/6 remarks—I mean explicitly telling Americans to take up arms against the rightful government. Congress, understandably annoyed, impeaches and convicts. Then what?

Under this decision, the ex-President keeps absolute immunity for the speech, which was discharging his official duty.

Did you mean that to display differently than it did?

Yeah. https://github.com/themotte/rDrama/issues/266#issuecomment-2203941882

It’s supposed to be a table where the intersection of “Authority” and “Impeached” is “???”.

Then nothing. The President's State of the Union remarks are protected absolutely. But note if he pulled out a Tommy gun and started mowing down the legislature, this would not be an official act, even though it occurred in the course of one.

Isn’t that perverse?

Anti-corruption laws add penalties because merely losing trust doesn’t outweigh the benefits of abusing an office. The Presidency is more powerful than any other office. Why should the penalties for abusing it be more limited?

I’ve got nothing against requiring impeachment as a hedge against misguided or malicious prosecution. The Court is correct to defend the President from such chilling effects. But getting impeached and convicted ought to strip those protections.

I would guess the Roberts court went as far as it did because they have in front of them what they see as a misguided and malicious prosecution. Presidents who abuse their office for personal benefit have not historically been considered a problem (they may have done it, but they haven't been prosecuted for it), and a President literally calling for armed revolution in the State of the Union address likely wasn't even on the radar.

But as for impeachment, I think the majority of the court considers impeachment to be a political process and wants a nice solid separation between it and judicial processes. Thus, they rule that impeachment simply has no bearing on immunity. Ruling that impeachment and conviction would strip immunity for the acts impeached for would break down that separation, and furthermore would have no bearing on the case in front of them (since Trump was not convicted)

Even without Presidential immunity, it is an interesting question whether the speech would be protected by the Speech and Debate clause. The Speech and Debate clause is written to only protect Representatives and Senators, but given that it has penumbras and emanations that protect members' and committee staffers, it seems like it could reasonably be extended to protect the President giving the SOTU.

If the speech was protected by the S&D clause, the President could still be impeached for it (because that is a proceeding in Congress) but not prosecuted (even after impeachment, because S&D protection can't be waived).

I don’t think the case addresses this and there are arguments that impeachment and conviction could remove the immunity (my theory is that would mean the conduct was ultra vires and therefore not entitled to immunity).

But impeachment isn’t a ruling on authority. It’s a political process for throwing someone out of office. You’d need an article of impeachment which explicitly made it ultra vires; that definitely hasn’t been a feature of previous impeachments.

What statement by Congress could rule that the President’s SotU wasn’t really discharging his Constitutional obligation?

The point is that congress needs to find that there was a high crime or misdemeanor. If the president was exercising his core constitutional powers, the only way it would make sense to me is if the end was ultra vires.

Impeachment is a political question, not a legal question. That is why it's handled by congress. The Supreme Court has already ruled on this. Congress is so sole authority that decides questions of impeachment. No judge can overrule them.

So what part of a rebellious SotU would be ultra vires? II.3 is quite vague.

There are lots of ways to abuse the lawfully granted powers of an office. Nepotistic or corrupt appointments—protected by II.2. Trading state secrets? As long as he does it on an official phone call, it’s protected. Collaborating with an invading army? He’s commander-in-chief, don’t tell him how to do his job.

All of these things would be crimes by anyone else. Some of them would be outright treason, which is one of the unambiguous criteria for removal. But under this ruling, the man with the most power to commit such crimes can’t face normal consequences. He can only lose his office.

Isn’t that excessive?

Nepotistic or corrupt appointments—protected by II.2.

The protection against nepotistic appointments is consent of the Senate, as RFK could tell you. That's not new. Accepting money or favors in exchange for appointment could be illegal, although the strictures this decision puts on evidence would make prosecution difficult.

Trading state secrets? As long as he does it on an official phone call, it’s protected.

The President's position as classification authority makes this already true for all but some technical nuclear secrets.

Collaborating with an invading army? He’s commander-in-chief, don’t tell him how to do his job.

Congress can "tell him how to do his job", but only through impeachment, not by accusing him of a crime. Dealing with the enemy in wartime is certainly a responsibility of the head of state.

Justice Sotomayor, at least, thinks the majority opinion precludes this

Inherent in Trump’s Impeachment Judgment Clause argument is the idea that a former President who was impeached in the House and convicted in the Senate for crimes involving his official acts could then be prosecuted in court for those acts. See Brief for Petitioner 22 (“The Founders thus adopted a carefully balanced approach that permits the criminal prosecution of a former President for his official acts, but only if that President is first impeached by the House and convicted by the Senate”). By extinguishing that path to overcoming immunity, however nonsensical it might be, the majority arrives at an official acts immunity even more expansive than the one Trump argued for. On the majority’s view (but not Trump’s), a former President whose abuse of power was so egregious and so offensive even to members of his own party that he was impeached in the House and convicted in the Senate still would be entitled to “at least presumptive” criminal immunity for those acts.

I believe she is correct, though the "presumptive" immunity likely would not be a problem, since in a case where the President was successfully impeached and convicted, the presumption could likely be overcome. The absolute immunity would be a problem.

Sotomayor gets many things wrong including in this opinion so I think that is strong evidence for my position!

Sotomayor is far from the best legal mind, but she's not a reverse weather vane.

It was a joke to be clear. But it reminds me of Roberts’ line in the Harvard case which was something like “the dissent is not a good place to find legal advice on how to comply with the majority opinion.”

Damn, that’s a pretty good one.

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