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Happy Independence Day!
Jul. 4th, 2024 08:52 amLooking through my archive, I'm surprised to find that I haven't posted anything on an Independence Day theme since 2018. Go read that; I'm still proud of it.
Today I'm less optimistic about the whole "We hold these truths to be self-evident" thing, because three days ago the US Supreme Court handed down not just the worst decision of my lifetime, but one of the worst in US history, up there with Dred Scott and Korematsu. I am not kidding or exaggerating. I wrote about it here that day.
In brief, anything a US President does using Constitutionally-granted powers is immune from criminal prosecution.
Yes, you read that right. A President can still be impeached by Congress for abuse of power, and maybe even convicted, but the penalties (as always) go no farther than removal and disqualification from office. Even if impeached, convicted, and removed from office, a (former) President cannot be charged criminally for any action undertaken using Constitutional powers. No matter what laws the action violates, no matter how self-serving the motives, the former President is immune.
A President can openly sell pardons, vetoes, and appointments in exchange for money, testimony, sex, or anything else; since the pardon, veto, and appointment powers are Constitutionally granted, this behavior can never be prosecuted as a crime.
A President can openly order the US military to assassinate or kidnap a political opponent, judge, juror, witness, ex-mistress, etc.; since the command of the armed forces is Constitutionally granted to the President, this behavior can never be prosecuted as a crime. (Members of the military who carry out the order might be prosecuted, unless the President pardons them.)
There are some wrinkles and details, of course. The Court suggests a distinction between "core Presidential powers" whose exercise is "absolutely immune", and "other Presidential powers" whose exercise is "presumptively immune", giving few guidelines and no Constitutional justification for this distinction. If an act is "presumptively immune", the Court sets a high bar for overriding the presumption: the prosecution must argue that criminal liability for exercising this power poses "no dangers of intrusion on the authority and functions of the Executive Branch." And the Court reserves the right to drop the whole "presumptively immune" category if it proves inconvenient: "At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient." So a lower court might spend months deciding whether an act is absolutely or presumptively immune, and in the latter case whether criminalizing it intrudes on the authority of the Executive Branch, only for the Supreme Court on appeal to say "Psych! We never meant any of that; it's all absolutely immune."
Another wrinkle: immune acts by the President not only cannot be prosecuted, they cannot be used as evidence in any other case (whether against the President for a related, non-immune act, or against an ordinary citizen). As somebody wrote in another social medium, "Nixon called; he wants his tapes back."
The Court says clearly that the President is not immune for "unofficial, private" acts, but sets a high bar for identifying those acts: they have to be "manifestly or palpably beyond his authority" as President. In making this determination, "courts cannot consider the president’s motives, nor can they designate an act as unofficial simply because it allegedly violates the law". As I read it, the only way to distinguish an official from an unofficial act is whether it involves a Presidential power: if you commit a crime in the same way that anybody else could have, you can be prosecuted, but if you commit the same crime using Presidential powers, you're immune.
And yet the SCOTUS majority, having told Presidents they can break the law with impunity, has confidence they'll never do so, dismissing the minority's concern about Presidents feeling "empowered to violate federal criminal law" as "fear mongering on the basis of extreme hypotheticals."
To the SCOTUS majority, the only thing a President can do wrong is exceed its authority; mis-using or abusing that authority is a logical contradiction, not only impossible but inconceivable.
We've given the President tremendous powers to act in the public interest. Any reasonable nation would scrutinize especially closely the use of those powers to ward against corruption and self-interest; instead, SCOTUS tells us to apply much less scrutiny to the use of those powers than we would to an ordinary citizen. Indeed, the user of those powers is, with no exaggeration, above the law.
To the SCOTUS majority, corruption and self-interest are of much less concern than the horrifying thought that a President, in choosing a course of action "boldly and fearlessly", might hesitate for a moment over whether that action is legal.
Every signer of the Declaration of Independence, every contributor to the Constitution, and everyone who fought for independence from King George, is spinning in his grave.
Today I'm less optimistic about the whole "We hold these truths to be self-evident" thing, because three days ago the US Supreme Court handed down not just the worst decision of my lifetime, but one of the worst in US history, up there with Dred Scott and Korematsu. I am not kidding or exaggerating. I wrote about it here that day.
In brief, anything a US President does using Constitutionally-granted powers is immune from criminal prosecution.
Yes, you read that right. A President can still be impeached by Congress for abuse of power, and maybe even convicted, but the penalties (as always) go no farther than removal and disqualification from office. Even if impeached, convicted, and removed from office, a (former) President cannot be charged criminally for any action undertaken using Constitutional powers. No matter what laws the action violates, no matter how self-serving the motives, the former President is immune.
A President can openly sell pardons, vetoes, and appointments in exchange for money, testimony, sex, or anything else; since the pardon, veto, and appointment powers are Constitutionally granted, this behavior can never be prosecuted as a crime.
A President can openly order the US military to assassinate or kidnap a political opponent, judge, juror, witness, ex-mistress, etc.; since the command of the armed forces is Constitutionally granted to the President, this behavior can never be prosecuted as a crime. (Members of the military who carry out the order might be prosecuted, unless the President pardons them.)
There are some wrinkles and details, of course. The Court suggests a distinction between "core Presidential powers" whose exercise is "absolutely immune", and "other Presidential powers" whose exercise is "presumptively immune", giving few guidelines and no Constitutional justification for this distinction. If an act is "presumptively immune", the Court sets a high bar for overriding the presumption: the prosecution must argue that criminal liability for exercising this power poses "no dangers of intrusion on the authority and functions of the Executive Branch." And the Court reserves the right to drop the whole "presumptively immune" category if it proves inconvenient: "At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient." So a lower court might spend months deciding whether an act is absolutely or presumptively immune, and in the latter case whether criminalizing it intrudes on the authority of the Executive Branch, only for the Supreme Court on appeal to say "Psych! We never meant any of that; it's all absolutely immune."
Another wrinkle: immune acts by the President not only cannot be prosecuted, they cannot be used as evidence in any other case (whether against the President for a related, non-immune act, or against an ordinary citizen). As somebody wrote in another social medium, "Nixon called; he wants his tapes back."
The Court says clearly that the President is not immune for "unofficial, private" acts, but sets a high bar for identifying those acts: they have to be "manifestly or palpably beyond his authority" as President. In making this determination, "courts cannot consider the president’s motives, nor can they designate an act as unofficial simply because it allegedly violates the law". As I read it, the only way to distinguish an official from an unofficial act is whether it involves a Presidential power: if you commit a crime in the same way that anybody else could have, you can be prosecuted, but if you commit the same crime using Presidential powers, you're immune.
And yet the SCOTUS majority, having told Presidents they can break the law with impunity, has confidence they'll never do so, dismissing the minority's concern about Presidents feeling "empowered to violate federal criminal law" as "fear mongering on the basis of extreme hypotheticals."
To the SCOTUS majority, the only thing a President can do wrong is exceed its authority; mis-using or abusing that authority is a logical contradiction, not only impossible but inconceivable.
We've given the President tremendous powers to act in the public interest. Any reasonable nation would scrutinize especially closely the use of those powers to ward against corruption and self-interest; instead, SCOTUS tells us to apply much less scrutiny to the use of those powers than we would to an ordinary citizen. Indeed, the user of those powers is, with no exaggeration, above the law.
To the SCOTUS majority, corruption and self-interest are of much less concern than the horrifying thought that a President, in choosing a course of action "boldly and fearlessly", might hesitate for a moment over whether that action is legal.
Every signer of the Declaration of Independence, every contributor to the Constitution, and everyone who fought for independence from King George, is spinning in his grave.
