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Biden isn't actually trying to build a legacy as a lame duck, is he? This has to be campaigning. Energize, synergize, winner-gize!
Generally, if Congress wants to pass a new amendment reducing executive immunity, I say go for it. That's what they're for. Do I trust they are capable of writing an amendment better than the SCOTUS ruling even if they had support? No.
How vulnerable a president should be to prosecution is a difficult question. It's a question I suspect SCOTUS didn't want to answer. I think most would have preferred to keep the presidential pardon norm, avoid the question, or avoid the candidate and cases that spurred it. Personally, I don't like the ruling, but I do think SCOTUS landed on the correct side of the trade off. I prefer an executive getting a lot of legal protection, because I'd really like to push the Rubicon crossing as far away as possible. Voting, impeachment, and the three different "layers" of presidential immunity seems fine. It'll cause some problems, but any policy will cause some problems.
Term limits seem fine, so long as we can agree to start with term limits in fifteen or twenty years. Some medium-far date that demonstrates we're changing the rules on principle, rather than political convenience of today.
Conduct and ethics rules I am only fine with if they expand to include Federal elected legislators, judges, and executive appointees. If Congress can pass a law that will hold themselves to the same standards they want to apply elsewhere, then sure let's do it.
Just for clarity, are you suggesting that a Rubicon crossing is less likely if we allow the President more leeway? Personally I disagree. I think being too permissive with a President is the more dangerous road. Think of it like parenting. While of course being "too strict" with your kids often leads to trouble and rebellion eventually, that's not the situation we're in. Since the Presidency (and Executive) in general is currently receiving more "lax parenting" from the legal process, I think doing a better job of setting rules and boundaries is more helpful and more likely to prevent a President doing something dramatically bad. In other words, those boundaries and restrictions on the President prevent malfeasance. I think giving the President too much space to do whatever they want without good boundaries is a recipe for the President to push those boundaries as much as possible. Much like teens might, boundary-pushing is expected and declining to set any in the first place is not a good parenting strategy.
There is an amendment currently proposed, as follows.
This is very bad, stripping all immunity, not merely limiting it. This would allow Congress, for example, to make vetos illegal. The court raised the example in the immunity decision that one of the charges against Trump could arguably be applied to any example of deliberate underenforcement of the law, which there tends to be some form of under every administration (e.g. immigration). In effect, it will be impossible to legally carry out the office of the presidency, and presidents will be free to bear grudges against their predecessors. Further, this includes immunity in the exclusive and preclusive powers, which even the liberal justices conceded would make sense—now Congress can set rules on when they can be vetoed? This dramatically harms the separation of powers. (Roberts notes also that no immunity would incentivize clinging to power.)
I'll note also that while the immunity ruling went too far in places (the evidence portion?), it left a lot of space, from the extreme of absolute immunity for all official conduct (which, evidently, one justice, at least, wanted) to Barrett's reading of it, which seemed always to take the most limited stance the opinion allows. It had to be written in such a way to satisfy all the people signing onto it. You can bet that if this case returns to the court after lower courts decide that Trump is not immune on the remaining questions (fake slates of electors, speeches, pressuring Pence), you will have at least four justices siding against Trump, with a pretty good chance of Roberts or Kavanaugh siding with them. That is, this is not indicative of a general principle that they're going to side with Trump.
I think it's worth taking seriously Roberts' own statement that this was intending to set forth generic principles, not ruling separately for Trump.
I don't know that I quite follow what you are saying. You seem to be saying that the courts are treating the presidency too deferentially, and so he needs to have immunity stripped. But do you have any indication of deferentiality besides the recognition of immunity (I think I've indicated why that can't be generalized)? Then your position seems closer to being that any form of immunity grants the president too much power. That is, your position on immunity, at least insofar as you articulated it here, does not seem contingent on how the courts treat him.
My expectation is that we see the immunity consistently read in the narrowest manner, making this not that impactful.
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Keep in mind that he crossed the Rubicon because a Senate oversight committee ordered him to come home unguarded so he could be executed after a show trial. That was literally the only reason he needed to do it in the first place.
But Trump wasn't going to get a show trial and usually a hypothetical president wouldn't either. So the Rubicon is a bad example in that sense and a framing that better reflects reality has to acknowledge that? Or is the core concern that the justice system a former president would be subjected to is too unreliable and there need to be more checks and balances involved?
I mean I think we agree that former presidents shouldn't have to deal with nuisance lawsuits but we shouldn't let that caution overpower the actual need for accountability mechanisms. There's an especially large hole currently in the accountability process during the lame duck period, where a president can no longer be held to electoral accountability, the Senate might not move fast enough to use impeachment, and the president might after getting out of office be in practice near totally immune to legal accountability. With how much power we give presidents as individuals, that worries me.
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Yes, of course. Caesar's enemies don't need to placate all of his ambition. They need a bit less obstructionism, unyielding perspective, bitter zero sum politics, and a few clicks down on the compulsion to destroy their political rivals. Employ a bit more savvy, a bit more compromise, and outcomes other than the destruction of the Republic become more likely. Hopefully those outcomes even become appealing or preferable. I would not go back in time to tell Cato that if he imposes a few more limitations -- just one more extra long filibuster -- on his bitter enemy that everything would work out. The obstructionism, the politics, the factionalism is how you find out, woops, I guess power can be different than what it appears to be.
I didn't argue that the executive shouldn't have any limitations to immunity. Just that the Trump v. US ruling landed in about the correct area. The President is not practically any more or less "immune" to murdering his political enemies than he was 10 years ago. I have only read excerpts of the opinions and dissents, by the way.
It sounds like you have a lot more trust in the entities that enforce "rules and boundaries" than I do. I believe if the President had no legal immunities today they would be mired in nothing but lawsuits. I'd wager we agree there, then at some point from no limitations on prosecution to has chip in his brain that puts him to sleep when he thinks about a crime we diverge. Allowing the President to do stuff without having obstructionism and factionalism destroy the Republic is good. The qualm about the bribes hypothetical that ACB (I think) brought up as and the related evidentiary issue is a sticking point. I don't mind the President being immune to extra presidential bribes if it means another 100 years of of peace. This ruling gives the nation more time to iron out the details in the future.
We have cases of "no immunity" to full immunity, we have a mechanism to impeach, and we have a mechanism to remove a president every 4 years. It's fine, it's enough. Asking for much more from the same people, those that can get lost in the of their own perception of power, carries a risk. SCOTUS majority probably saw that people imposing rules and boundaries couldn't stop themselves or, if they didn't think so now, they saw a future where they couldn't.
A reliable, peaceful transfer of power is worth a hundred consecutive Trump presidencies.
That's an interesting perspective! I did ask mostly because I was curious and I appreciate your thoughts.
On reflection, I guess to me the bribe issue seems a little too close to plausibility for me, especially when you cross it with the pardon power. While typically I trust presidents not to abuse the pardon power too badly, or if they do it's generally not a big deal, its specific interaction with the recent ruling seems a bit more dangerous than either aspect in isolation.
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