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Notes -
Thoughts on Trump v. United States:
There were five opinions. The Conservatives joined Roberts' opinion, except for Barrett regarding one section. He set out the following:
Presidents have absolute immunity for core constitutional powers.
For official acts more generally, he at least has presumptive immunity, but maybe absolute immunity.
They have no immunity for unofficial acts.
This judgment was based on large part on structural considerations of the constitution. For one, if the Constitution says that the President shall have some power, like the veto or the pardon, Congress cannot, by regulation, limit that or take it away. That would counter the separation of powers and intent of the Constitution. On the other hand, some things have authority from both, so maybe Congress could regulate those.
Additionally, this was based in large part on extensions of precedent from several prior cases, especially Nixon v. Fitzgerald. There, they ruled that presidents could not have civil suits leveled against them for official acts in Congress. While there is a greater interest, there is also a greater danger to the president, as jail is more serious than a financial burden.
The concern is that not having any immunity would allow frivolous criminal cases to proceed, which would seriously limit the bold action that the founders would have wanted a president to take. In such things, the dangers of intrusion on the executive branch must be considered: subpoenas were ruled to be fine in Burr. Executive privilege has long been held to exist. In all such cases, the risk of intrusion is weighed against the interest of the people, and so in this case, because criminal proceedings are a serious matter, they are allowing them, but they are permissible, but cannot pose any danger of intrusion upon the authority of the Executive branch.
Roberts applies this to the particular cases. The conversations with the DOJ officials, including threatening to remove the Attorney General are held to be absolutely immune, as they have past held that deciding who to prosecute, as well as removing officers, are within the exclusive authority of the President. Conversations with Pence are official, but the government may attempt to rebut that it will not impose dangers, as Pence arguably was carrying out a ceremonial role, and as a member not of the executive. Conversations with state officials to form alternate slates of legislatures, they do not rule on whether they are official or not. Public speeches and tweets, they do not rule whether they are official or not, as it is tricky to discern whether he is acting in the capacity of a candidate or of a president. All these they remand to lower courts to work out.
They also rule that official acts may not be used as evidence in courts, especially since it could be prejudicial. Barrett did not join this.
Roberts then rebuts the various arguments of the dissents, points out that they are giving Trump less than they asked, and are still leaving room for most of the charges, and argues that this is not the "chilling doom" that they are making it out to be. And that it is needed to prevent an executive cannibalized by itself, with each administration prosecuting the last, and so in fear of acting itself.
Barrett joins in large part, except the note on evidence. She would prefer to frame it differently: "immunity" is shorthand for saying that the President may challenge whether criminal statutes are constitutional as applied to him, and he can do that in interlocutory review, before the trial. All agree on the first point in some form, at least, even the dissent. And interlocutory review is "necessary to safeguard important constitutional interests." She would prefer to resolve some things the court left open: most importantly, that the president is not absolutely immune from all official conduct, as Congress has concurrent authority over many government functions, and so they should be able to regulate those, including criminally. Barrett would assess whether charges on official acts are valid in two steps: first, by looking at whether the statute reaches his conduct (e.g. maybe the murder statute prohibiting "unlawful" killings doesn't apply), and second by looking whether it poses danger of intrusion on the authority and functions of the executive branch. For example, the electors case would not intrude. This is the usual case in criminal law. The difference is interlocutory review, and this is necessary because even the mere existence of the trial itself threatens constitutional interests, and so they must be addressed at the outset. She disagrees on whether immune official acts can be evidence, though—it may be necessary in some scenarios, and they can follow the ordinary route of instructing juries only to consider them in specific capacities.
Thomas writes, in something of a sideshow, on the whole office of "Special Counsel." The appointments clause requires the President to appoint some listed offices, and other offices to be under Congress' jurisdiction, but by require it to be done by law. The President may not merely produce offices; some of the motivation for this was due to the history under England, where the King could create new offices and fill them. Congress often explicitly created offices. But there does not seem to be any statute authorizing the appointment of the Special Counsel. He doesn't think the ones cited work. Further, if he is an inferior officer, such a statute would require that the statute give the Attorney General the authority to fill it.
Sotomayor dissents, joined by the other liberals. She sees this as putting the president above the law. Sotomayor thinks that the majority expanded the core immunity beyond any reasonable bounds, baselessly created immunity for official acts, and nonsensically ruled that immune acts cannot be used as evidence.
Starting with text, the Constitution makes no provision for immunity, whereas it did in the Speech and Debate clause for Congress, and some states did for their governors. Additionally, the impeachment clause contemplates prosecution. Turning to history, Hamilton, in Federalist 69, thought the president could be prosecuted, (he says that he was no more secure than the governors of certain states). Pinckney said there was no privilege, and Madison proposed the convention consider privileges of the executive. It was generally agreed that Presidents could be prosecuted. "It seems history matters to this Court only when it is convenient" (citing Bruen and Dobbs). Third, Presidents past understood themselves to be liable, looking especially at Watergate: Ford pardoned Nixon.
Sotomayor thinks the majority's opinion is too broad, when it says no dangers of intrusion, as practically everything has some danger of intrusion. And so their not deciding whether it is absolute hardly matters. Further, they read official acts too broadly. And their basis for it is solely based on Nixon v. Fitzgerald. Fitzgerald considered weight of interest vs. dangers of intrusion. A criminal prosecution is an interest on behalf of the public, and is much greater than the private interest from a civil suit. And she thinks that criminal suits are going to be less serious with regard to the executive: in civil suits he's an easy target from anyone, where as there can only be one criminal suit per act, and further, there are all the ordinary protections in the process of bringing to trial and the trial itself. She does not think bare allegations of malice would suffice. Further, every executive to date has long thought they were vulnerable to such, and it hasn't stopped them from acting boldly, so the Court shouldn't worry as much about that. Sotomayor also rejects that it is a narrower immunity, as Trump's case thought that those impeached could be convicted on those acts, whereas here they are immune.
Sotomayor grants that core immunity would make sense, but that it should not have been at issue here, should not have been addressed, and was made too broad. She does not think he should be immune regarding conversations with the DOJ. She also thinks that the evidence is rule is unprecedented. It is strange to bar official conduct: e.g. barring using speeches to establish mens rea. Nor is the majority's justification any good. And she thinks this case is also bad in its application to the case: they did not conclusively say anything was private, or anything that anything was prosecutable. The follows the passage you may have seen online, where she says that this sets up a law-free zone, and that he would be immune for coups or assassinating rivals with Seal Team 6, or bribes for pardons. And finishes with, instead of "respectfully," "with fear for our democracy."
Jackson agrees with "every word of [Sotomayor's] powerful dissent" and writes to go through "the theoretical nuts and bolts" of how this changes how presidents are accountable. No one should be above the law, and immunity is an exemption from the law. She calls her preferred model and "individual accountability" model: the legislature makes crimes, when someone violates them, a grand jury is convinced there's cause to indict, they gather evidence, go through a trial, with a jury, where he may make various defensive arguments concerning that trial, even some before trial (including that the law would be unconstitutional as applied to him, or that his conduct, if proved, still would not violate the law). He may also present defenses that excuse otherwise punishable offenses, including that which Government officials sometimes invoke when carrying out duties.
She thinks the majority's opinion is worse. For every allegation, they must go through and parse whether it violates core constitutional powers, is an official act, and if so, whether the immunity is there rebutted. And this must be run through even in extreme cases, such as assassinations or coups. Under her preferred paradigm, there are no exemptions from criminal law, but they can still use legal arguments of its inapplicability, and defenses. The majority's opinion can give immunity "even for unquestionably and intentionally egregious criminal behavior." And she reminds that under her preferred model, the president could still present affirmative defenses that it was justified, whereas the majority's allows crimes even when no one thinks there is any excuse.
This opinion increases the power in the judiciary and executive, and lessens the power of Congress. The court, in this immunity decision, has taken from Congress the ability to bind the President to its mandates, and so increased the power of the Executive. The president may take care that the laws be faithfully executed, but is under no obligation to follow them himself. The court also gives itself power, as it does not give a clear enough definition of the extent of any of the things: what is core vs. not, what is official vs. unofficial. (She thinks, unlike Barrett, it seems, that it is challenging to apply the reasoning to the slates of electors.) And so the Court has arrogated to itself the ability to draw lines regulating the President, rather than Congress.
This decision also reduces deterrence, by the threat of criminal liability being largely gone. Presidents are far less accountable. She sees the majority as mainly motivated by what would be good and bad, not law. But she does not think that they consider adequately the need for restraint upon the executive.
This plants the seeds of absolute power. She cannot stand their discarding the rule of law. It is now rule of judges, instead. She thinks that they do not adequately appreciate the risks, and so dissents.
You can tell that she has a background in criminal law.
Thoughts on this, then:
This case is striking in how it differs from other constitutional cases the court has taken: it hardly considers founding-era context, turning rather to structural concerns and precedent. And much of the motivation for individual concerns is closer to "this seems like it would be needed to get the results the founders wanted" rather than "the Constitution says this." On the other hand, Sotomayor's argument is significantly more originalist than the majority, which is an unusual turn.
I found this piece, by Baude, to be pretty good. This ruling, like the Trump v. Anderson ruling, were not adequately justified. Trump v. Anderson was far worse, failing to consider that states have discretion to choose their own bodies of electors essentially however they wish, per the Constitution (Here's a length complaint about it, though nowhere near as lengthy as his arguments leading up to that point.). But this too was different from the principled way that they more often act, turning in large part to precedent. The part that was most egregious, in my judgment, was the evidentiary rule (pages 30-32)—they hardly bother to justify that, I think. Unless, is this previous immunity caselaw? I guess if there are any lawyers who know about that, that would be helpful if you could weigh in.
While I agree overall that having some level of immunity is sensible, I would have appreciated it if they had, for example, tried to show what exactly could be done to founding-era Governors of states, if there exists any history to that effect. But the Burr cases were practically the only founding-era history they cited, and they were not relied on very much.
Their arguments for core constitutional powers being absolutely immune, and for unofficial acts being not immune, seem rather compelling. What is not clear is the central holding, about presumptive immunity for official acts. It must be noted that they left a lot of ground here open: they left it open that it could be absolute immunity (I imagine there was at least one justice who thought it should be?), and left a lot of room as to what exactly is official, and made no attempt to assert what would involve infringing on executive powers. They make clear that this deals with things that are not under Congress' control, but I do not think they argue for why this is needed aside from that this is necessary to bring about a bold executive. Actually, I'm now wondering, after seeing the word "chilled" on page 13, how this compares to first amendment cases—the reasoning being that such things in effect strip of constitutional powers. I don't know that I'm all that happy with that, and it feels a little like judicial legislation ("balancing tests"), but alright, fair enough, I suppose.
I would also be interested in looking at whether, for example, at founding era times, it would make sense for Presidents to be able to be bribed for pardons or vetoes in the founding era, and that be pursued by avenues other than impeachment. Can presidents, after being impeached, be convicted of treason or bribery in their official acts, for example?
Now, finally, I'll turn to the differences between the Roberts' opinion and Sotomayor's dissent, and try to examine which I find more compelling. I'll organize this around claims from Sotomayor's dissent.
Text: Sotomayor: There is no immunity in the text. (Page 5)
Roberts: A specific textual basis is not needed (citing Fitzgerald). (Page 37)
Sotomayor: I didn't say that it was, but there are three reasons it's relevant: First, the framers knew how to provide immunity, looking at the speech or debate clause. Second, state constitutions applied some immunities, but Congress does not. Third, the impeachment clause allows for liability for former presidents. (Page 5-6)
Roberts: Regarding the first, it's implicit; there's no separation of powers clause. Roberts does not address the second argument. For the third, Roberts notes that it does not say whether the clause thinks that official conduct may be prosecuted. (page 38)
My thoughts: I think Roberts largely addresses the arguments successfully, but he could have looked a lot further regarding state constitutions. Both sides are reasonable.
History: Sotomayor: Hamilton thought that Presidents would be "liable to prosecution and punishment in the ordinary course of law," unlike the king of Great Britain. He would stand "upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware."
Roberts: These do not specify whether they are talking about official conduct, or private crimes.
Sotomayor: Madison proposed the Constitution consider privileges to be allowed to the Executive, but there is no record of it. Pinckney, a delegate, said that no privilege was intended for the executive.
Roberts: This is the best of your historical arguments, but they only represent the claim that no mentioned immunity exists, don't mention that whether it's official, and Pinckney isn't reliable on separation of powers, anyway. (page 39)
Sotomayor: James Wilson and Justice Story recognized that federal officials may be tried. (pages 7-8)
Roberts: This doesn't specify whether it's official, and further, they don't even say whether the President is also in mind here. (page 38)
Roberts:Further, Nixon v. Fitzgerald recognized that all this evidence is fragmentary.
Sotomayor: Nixon v. Fitzgerald was only talking about history for civil cases, and in any case, it still looked to them and showed that it was best, where as you merely try to show it permissible. It seems this court only cares about history when it suits them.
My thoughts: Roberts generally successfully rebuts on most of this, but the Hamilton quote needs to be examined, because of the reference to state constitutions. Let's take a look. He references New York, Maryland, and Delaware. But Virginia was afterwards substituted for Maryland.
New York: The representatives can impeach, and the party convicted shall nevertheless by liable and subject to indictment, etc.
Delaware: The president is impeachable when out of office, and within 18 months after. If guilty, then subject to such pains and penalties as the laws direct.
Virginia: The Governour. when out of office, and others offending, whether by maladministration, corruption, or other means, is impeachable. And subject to laws of the land, including under pain and penalty of the law.
So Hamilton seems to be talking mainly about when they may be impeached: New York doesn't specify, but Delaware and Virginia are later.
But I think it might need to be noted that Virginia seems to be including official conduct as under judgment. Sotomayor's case would have been stronger if she's looked into that.
Aside from my own Virginia question, and Sotomayor's point that the court seems selective in when it wants to use history, Roberts seems to come out on top.
Established Understanding:
Roberts: That's only an understanding, not any evidence of it showing up in actual practice, because no one's been prosecuted. (page 39)
Sotomayor: "Settled understandings of the Constitution are of little use to the majority in this case, and so it ignores them." (page 10)
My thoughts: A consensus, it seems.
Overall result of the judgment:
Sotomayor: No dangers of intrusion? Everything seems to have dangers of intrusion. That's practically absolute. (page 11)
Barrett: The setting up slates of electors, even if official (which, by the way, it's not) would not pose intrusion. (pages 3-4)
Roberts: The vice president things would maybe not pose any dangers of intrusion, we're sending it back down to lower courts to decide. (pages 21-24)
Sotomayor: But that shouldn't be the standard. What about needs to promote objectives within the constitutional authority of Congress, or of the Judicial branch to do justice in criminal prosecutions? (page 11)
Silence, so far as I can see.
Sotomayor: The majority reads official too broadly, including whatever is not palpably beyond his authority. And motive may not be considered, which would mean that even action for corrupt purposes would then remain immune. (page 12)
Barrett: The elector stuff is clearly unofficial. (page 3)
Roberts: The elector stuff might be unofficial, and maybe the speech stuff, we're sending it back down to decide. (pages 25-30). Anyway, motive shouldn't be considered, as then merely alleging improper purpose would open everything up to liability, which would be crippling, as Fitzgerald says. (page 18)
Sotomayor: This makes the president above the law. (page 12)
Roberts: No, this just preserves executive authority. He can still certainly be subject to prosecution in his unofficial capacity (pages 39-40.)
Sotomayor: Of course he can, that's not in dispute. (Page 11.)
My thoughts: Sotomayor's concerns are valid, but I don't think they'd be applied that way in practice. Barrett's made it quite clear that she reads this narrowly, and I imagine that that would apply to at least one of the others, which would put a five-member majority including the liberals, if it ever makes it back to the Supreme Court in the near future.
How Fitzgerald applies:
Sotomayor: Criminal cases can't just be brought by anyone, so there'll be fewer of them. (page 15)
Roberts: Yes, but it's still a bigger threat, because the punishment is a far stronger deterrent. (page 13)
Sotomayor: There are procedural safeguards, before a criminal case is brought. "Bare allegations of malice" would not suffice to bring about a trial. (page 15-16)
Roberts: These are important. Nevertheless, regarding the claim that grand juries, etc. will prevent the bringing of baseless prosecutions, "we do not ordinarily decline to decide significant constitutional questions based on the Government's promises of good faith." (page 37)
Sotomayor: The President can argue that it's unconstitutional as applied to him at trial, as a protection. (page 16)
Barrett: Glad to note that you agree that there are some unconstitutional prosecutions. (page 1)
Roberts: These fail to address that there are some things that can't apply in the first place, so all this has to be addressed at the outset. And a trial is itself a negative. (page 36)
Sotomayor: Presidents have long considered themselves open to such a threat, but that didn't hurt them. And some caution is necessary.
Roberts gave no response that I could see.
Sotomayor: The majority seems concerned not by truly criminal acts, nor are they concerned about the President thinking for a second, but rather it must be baseless accusations. But this would be doomed to fail. They should trust the President's to be bold despite that. (page 18)
Roberts: Section 371 covers conspiracy to impair the lawful function of any department of government. Practically every president is criticized for not enforcing enough in some zone or another (e.g. drugs, guns, immigration, environment). There you go, open to prosecution. It'd be easy to fall into a norm of always prosecuting your predecessor. (page 40)
Sotomayor: On the other hand, the public interest in prosecuting presidents is greater than the private interest in a civil suit. (Page 19)
Roberts: Yes. (Page 13)
Sotomayor: This is especially true in cases where there is civil liability, as that's the only avenue. Further, he represents the people, so all the people have an interest. Additionally, the Executive Branch has an interest in bringing about prosecutions of criminal law, so you're preventing that.
Roberts: says nothing.
Roberts: The immunity Trump requested is larger than that recognized: he wanted immunity from anything that he was not impeached over (32).
Sotomayor: No, Trump only asked for immunity for the unimpeached. You want immunity regardless. (page 22)
My thoughts: Overall, I think Roberts wins on the criminal liability being worse, but I'm not sure. The second point, that the interest is greater, he concedes, and that is one reason the immunity might not be absolute. The third, as to which is stronger, I mean, both have a case?
Conduct within his exclusive sphere:
Sotomayor: This has some sense, if it were relevant. But that doesn't involve the actions in question. But the majority reads it too broadly, including "take care that the laws be faithfully executed," which includes all sorts of conduct. (23-24)
Barrett: I don't read the majority opinion that way. (page 2)
Sotomayor: The majority holds him absolutely immune from prosecution involving conversations with the justice department. That expands the category beyond recognition. (page 24)
Barrett: It being part of the core executive power fits with our separation of powers precedent. (page 2)
Roberts: The Executive Branch has exclusive authority and absolute discretion involving these matters, per precedent (page 20).
Sotomayor: You can't pretend that the Government agrees with you on that; its vision of it was smaller.
My thoughts: I think Barrett reads what's going on here better than Sotomayor.
Evidence:
Sotomayor: This deprives prosecutions of any teeth. And it's strange to say that a speech couldn't be used as evidence of a mens rea. (page 26)
Barrett: Yeah, I agree this makes it too hard (page 6).
Sotomayor: This has no basis in law. The first amendment allows use of it as evidentiary, but not criminal. (page 26)
Roberts: This would eviscerate the immunity, inviting the jury to consider acts for which the president is immune. (page 31)
Sotomayor: But you could just instruct the jury? (page 26, Barrett agrees, page 6)
Roberts: But people have strong feelings, this would still bias things. (page 31)
Barrett: But it's already the case that evidence can be excluded when prejudicial or confusing? Why not just stick to the usual thing (pages 6-7) (Sotomayor says the same on page 26.)
My thoughts: The majority seems wrong here? The other approach just obviously seems better?
Concerns about the majority's approach:
Sotomayor: The majority, declared some things official, but refuses to declare things unofficial. Likewise, they declare some things immune, but refuse to recognize anything as prosecutable. (pages 27-29)
Jackson: Yeah, this leaves it in the court's hands, an arrogation of power to the judiciary. (Pages 13-16)
Barrett: I think the elector things were unofficial. (page 3). I also think the Court should have said that they had presumptive immunity, not left it undecided between that and absolute (pages 1-2).
Roberts, scathingly: We've had no briefing, and it's been expedited. One of you (Sotomayor) wants us to declare everything unofficial, and the other (Jackson) wants us to "exhaustively define every application of presidential immunity." Stop pretending that we're infallible. We decide what is needed, and remand, as per time-tested practices. (page 41)
Sotomayor: That's what you claim, but you still wrote more than lower courts even considered, or any parties briefed, regarding what is official. It's judicial activism in designating some conduct as official, but saying nothing about the rest.
My thoughts: The majority decision looks like a compromise between some justice who wanted absolute immunity, and others who wanted more moderate things. They said what they could agree on, and remanded the rest, reproducing the reasoning available to each side. So Roberts is probably not really being fully honest as to the motivations here (though some of the questions are genuinely tricky, like whether a speech is official), but neither is Sotomayor in representing this as plainly being that they're biased towards the one side.
Fears:
Sotomayor: The President will be immune for ordering assassinations, coups, bribes for pardons, etc. (pages 29-30)
Roberts: Your chilling doom is disproportionate to what was decided (page 37). You are just fearmongering with extreme hypotheticals and a future where the President feels free to violate criminal law. (page 40) You need to be more concerned about an executive branch that cannibalizes itself with prosecution.
My thoughts: Disrespect is a legitimate concern. I'd imagine, though, that assassinating rivals, or attempting a coup would be something that the court would rule as beyond the President's authority. This would probably defuse a lot of the online complaints about this opinion. The bribes for pardons thing is weird, because it deals with something agreed to be within the exclusive powers, even by the government.
And that's the end of Sotomayor's opinion.
Some closing thoughts:
I think overall the responses to Sotomayor were mostly sufficient (excepting the evidence part). That said, this particular opinion of hers was actually not bad (except the last page or so); far more compelling than the Grants Pass one.
Barrett's opinion definitely was the most compelling to me.
Thoughts? Did any of your assessments differ?
I'll probably get around to reading and writing on the two remaining cases from Monday at some point, and maybe I'll write something on any insights I've gleaned overall about how the justices operate, if I can think up enough to make a post about.
Right, and this is why the whole thing is so weird. The CW aspect has always been "deep state blob trying to charge Trump on whatever" and yet the decision (as you point out) has nothing about that whatsoever.
For that reason, I think the decision is fairly sensible. If the President gets to appoint ambassadors, Congress cannot say "it's a felony not to appoint So-and-So as ambassador to France before August 1". How that ended up as a CW lightening rod is totally beyond me.
Is it okay for Congress to say "It is a felony to appoint an ambassador in exchange for a bribe"?
Given that the vast majority of prosecutions of elected office-holders for official acts after leaving office have been for bribery, and that the Court claimed they were making a rule for the ages, I think this point deserved more attention than it got. My read is that the majority opinion makes it effectively impossible to prosecute the President for bribery if the bribe-service falls within the express Constitutional powers (a pardon, an appointment, the surrender of a fort to the enemy etc.) and extremely difficult if the bribe-service is some other official act, such as the award of a federal contract.
At this point, after the Americans spent the better part of the last century and more doing just that for campaign donors? It'd be rather weird and imply a good deal of criminalizing bipartisan normal behavior, which itself would imply an intent for arbitrary and selective enforcement.
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That is an interesting question, but I think it's clear that before we do interesting questions we should strive to get the uninteresting ones correct.
And truth be told, I'm not sure if Congress can regulate that criminally or must do so via the impeachment process. I could be convinced that it's proper to prosecute that criminally after he leaves office, but I could also be convinced that saying "you can't appoint an ambassador in exchange for a bribe" is not too far from saying "you must appoint an ambassador based only on X,Y,Z criteria".
Certainly I think the surrender of a fort to the enemy was already beyond the reach of the courts on a number of other grounds.
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Well the president’s power does not include the power to receive a bribe. Therefore there would be no immunity. The harder part is the evidentiary burden. But I think getting say bank records would be permissible. By the way cushy ambassadorships are already sold off for donors. There is just no explicit quid pro quo.
No, but if the bribe-service isn't admissible in evidence, then there is no way to distinguish a bribe from a gift.
Legally, there is an important distinction beween a donation to a politician's campaign, and a cash payment to the politician. We can argue about how relevant this is, but it is the law and it does reflect the way the American political elite behaves. I don't think the existence of unofficial quid pro quos for campaign donations is a good argument for legalising direct bribery.
I noted the evidentiary problem.
And yes there is a difference between today’s unofficial quid pro quo and literal quid pro quo. I’m just making the point there is already a degree of corruption going on.
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Memorably, Trump appointed as Ambassador to the EU in 2018 a hotel businessman named Gordon Sondland who had donated $1 Million to Trump’s Inaugural Committee
Sondland ended up being a key figure in the Ukraine impeachment imbroglio, which is the only reason this was considered notable. I remember thinking at the time that i) $1M is not all that much money and becoming an ambassador seems readily achievable; and ii) that absolutely nobody seemed to care about this obvious bribe (again, the payment was to the Inaugural Committee, not even the campaign)
Dan Rooney became the ambassador to Ireland for supporting Obama and fundraising for him. Similar deal.
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It's worth noting that what you list would seem to fall within the core powers portion, whereas immunity for official acts more broadly is where there is more disagreement.
Arguably, things not core powers would have authority shared between Congress and the Executive, and so it might be more plausible that Congress could have some forms of regulation of the actions of the President there.
It doesn’t fall within the core powers. First, receiving bribes is not with the core power. Second, it is clear that Congress has the constitutional power to punish the president for receiving bribes so at best it falls within the second category.
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I mean, Trump v. Anderson was very much a pragmatic, "please don't explode the country" ruling; ruling that Colorado's actions were AOK would likely have ended Very Badly. One must give it at least some credit for that.
Oh, certainly. I don't disagree that Trump v. Anderson's result had better consequences than the contrary. It just wasn't good legal reasoning.
Well, hmm. I guess I misspoke. Finding that states could disqualify candidates on their own initiative wouldn't directly blow things up, but it almost certainly indirectly would via the inevitable tit-for-tat and the resulting non-popular-vote-based election eating legitimacy. Finding that Trump was disqualified but states couldn't disqualify candidates would probably only have blown up everything if there was a relevant vote-split between the Republican candidate and a Trump-Anyway write-in, which the Republican Party could probably have avoided by nominating Donald Trump junior (though who knows if they'd have done that). Finding that Trump was definitely not disqualified, per curiam, wouldn't have blown everything up, but presumably Jackson and Sotomayor would have dissented and if one of them had written a "please defy this ruling" dissent then Megumin casts Explosion.
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All of this seems to make investigation/prosecution of the Hunter/Big Guy stuff much more difficult -- what are your feelings on that aspect?
I think that was regarding while Biden was vice president, which they've made no ruling on.
They also seem to be willing to regulate bribery for presidents, which this would be related to. But really, the actual harm that people are trying to get to with that is to reduce electability, which wouldn't be impacted; it's not like any of this governs what the media is allowed to do.
Allowing that VP might not be considered similar to the President in this regard (why not?), [i]what we know[/i] about Biden family influence peddling seems to implicate the period where Joe was VP -- but I see no reason to assume that the influence peddling would not tend to [i]intensify[/i] once he was in the driver's seat.
Who would investigate this in the event that there is no possibility of charging him?
Markdown formatting.
Enclose in single asterisks for italics. Double asterisks for bold.
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I have no idea how they'd rule on vice presidents. I assume they'd give some immunity, but I have no idea how much, at least, when not acting as president.
I imagine reporters might still be interested in doing some digging, even if prosecution is impossible.
For italics, I use asterisks on each side; themotte turns them into italics.
They would give zero immunity. Read the first line of article II. The power is vested in the president; not the vice president. The latter does not implicate separation of powers.
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This is weak; reporters don't have subpoena power or anything like that; don't you think that corruption is a thing that should be investigated by some legal authority?
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I haven't read the judgement itself yet but my general reaction from commentary about it (including yours) is pretty similar. Barrett's position is the best one. The majority opinion goes too far specifically in disallowing official acts from being used as evidence of intent. Sotomayor's dissent is pretty good.
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Great thoughts and great read. A lot of work! My initial two reactions to the decision were basically, 1) the whole thing about official acts not being able to be used as evidence just seems so... flagrantly stupid? Despite the rest seeming reasonable. I viewed this as an explicit help-Trump flag rather than a genuine desire to get at the law. And after thinking about it a little more and reading the arguments, 2) yeah, under this majority arrangement, bribes for pardons is... almost bulletproof legal, or de facto absolutely non-prosecutable, which is absolutely batshit crazy. I mean, I'm sure they felt that pardons were enough of a 'different topic' that maybe they didn't want to touch that hot potato, but it seems strange to discuss the whole issue of presidential criminality without talking about it. And it's even more aggravating that bribes for pardons is most likely to occur at the end of a President's term, when impeachment basically is not on the table anymore, at least according to a number of arguments we heard back around Trump's impeachment.
I'm impressed by Barrett in her time on the court so far. Not knowing how the Court decisions work exactly, are judges allowed to hew directly to Barrett's view, since without her there is no majority opinion?
It's not flagrantly stupid. It's the Court reacting to factors that this particular Court usually pretends does not exist -- that lower courts and prosecutors will simply ignore, deliberately misinterpret, and work around its decisions, and that juries may be politically biased:
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Yeah, I'm kind of worried that that was a motivation, but I'm not sure. I know the evidence was talked about at the oral arguments, but surely it shouldn't have been enough to get five justices to sign onto it, with that level of reasoning? I imagine there was some cajoling to get what level of agreement they had.
My question about pardons was closer to that if pardons are one of the core powers, over which the executive has conclusive and preclusive authority, as the majority says, wouldn't that mean that he would be absolutely immune from criminal prosecution (but not impeachment) in the exercising of that power? But it's more complicated than that, as Barrett and Roberts have an exchange (page 6 or so for Barrett and maybe 32 or so for Roberts, if memory serves me) over bribery, where he thinks pointing to the record of the official act would be permitted? I really didn't understand what he was saying there. But it seems like he considers bribery distinct from the act itself.
I've also been impressed by Barrett. She's more principled than Kavanaugh and Roberts, is good at statutory interpretation, and I think I also like her approach to originalism and history the best out of the justices.
Joining her opinion: yes, you can join concurrences. In this case, the main effect of that, assuming the sets of things they joined was the same as her, would be that there would not be enough justices for the evidence portion to be an official holding of the court, as it would not have enough justices, but the rest would be.
In some hypothetical where it was joining opinions in such a way that nothing commands a majority, the rule is that they decide the outcome of the case based on what has a majority (e.g. to rule in favor of one party), and whoever has the narrowest position is taken as the precedent to be followed by lower courts. Yes, that's not always the most clear.
One noteworthy example of that happening was in Regents v. Bakke, where four justices were for affirmative action, four justices against it, and one not okay with racial preferences in themselves, but only for the sake of racial diversity. The latter position was followed, later reaffirmed, and is how we eventually ended up with diversity becoming the justification for racial preferences.
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Roberts's opinion is endorsed by six justices except for section III-C, and by five justices in section III-C. Five is a majority of nine.
Oh, oops, duh. That's a pity. Does it work like that in general, though (say one other joined her instead of the majority)?
She joined the majority, except in the one section, so most of it is not an instead, except for the evidence part.
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