I mean, it certainly raises the stakes of the election. Trump can appoint anyone who pays him to whatever position he wants and has absolute immunity. He can sell state secrets to any other country, absolute immunity. All the things he did but at least tried to hide can be done out in the open.
What does "presumptive immunity" mean? That you have it the Supreme Court likes you but not if they don't?
It's frustrating how it uses the penumbra around the word "official" to make the idea sound less facially ridiculous that if it's official, it is presumably constitutional. But if official just means the kind of act an officer would do, that presumption is barely different from "If the president does it, it's not illegal." (If disguised enough that it will not help Democratic presidents.)
1 gets it exactly right. The founders presumed that outright corruption would surely lead to impeachment. We see that this is not so.
One of the big defenses of Trump in his impeachment cases (and in the Mueller investigation) was that he could be prosecuted after he left office. Whoops.
I haven't seen the full legal analyses yet, but it seems like (a) as expected, it did not fully quash the trial but sent it back down to answer new questions that will certainly delay past the election, but (b) less expected, it gave a near-maximalist read on the principle of immunity that will make it a lot harder for the subsequent proceedings to find against Trump.
NMM to cautious moderate ACB.
Presumptive immunity:
"The indictment's allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct... The question then becomes whether that presumption of immunity is rebutted under the circumstances."
So you can try to claim an official act isn't immune, but you also can't use any evidence from official acts to disprove that immunity. This is like the Saul Goodman "give me a dollar so I'm your lawyer" defense- just call any act or conversation official and there's no way to prove it shouldn't have immunity.
And the lower court is barred from inquiring into Trump's motives?! Doesn't that give him immunity a second way, no mens rea findable?
Doesn't this leave the Seal Team Six hypothetical (which, Christ, I'm tired of reading about) a case where immunity would apply? Or is there some nuanced distinction in the opinion?
Hypocrisy and bad faith aside, it's absurd that the status quo is now that there is no way to punish abuses of power that come to light post-presidency (and, being real, in the lame duck period if not several months before, since the impeachment process takes a non-trivial amount of time). I suppose at least, hypocrisy and bad faith aside, if a Jan 6-like situation were to arise in the future, the Senate would not have "leave it to the criminal courts" as a face-saving argument. (What outrageous bullshit will they come up with next?)
Not only is Seal Team Six now legal (if discussions with the AG or VP are off-limits, all the more so for CJCS), but it's also legal to bribe the president to use Seal Team Six, as long as he's paid with a wink & a nod after the fact.
It would be illegal for Seal Team Six (who by the way don't exist, and haven't existed since 1987; you mean DEVGRU) to kill Donald Trump, because that would be murder. Even if Biden couldn't be prosecuted for ordering it, they could be prosecuted for doing it. Similarly it would continue to be illegal to bribe the president, even if the president couldn't be prosecuted for accepting the bribe.
Biden could murder Trump himself and be immune from prosecution, but no one else could do it for him.
11: "Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law."
Obviously people don't expect or want Biden to do the funniest thing possible.
But like what does "whether that presumption of immunity is rebutted under the circumstances" mean? How do you rebut it?
11: but in this fantasy world, doesn't the president just hand out pardons like candy? Sure, there's an uncomfortable period of trial and sentencing, but true patriots will relish it.
but in this fantasy world, doesn't the president just hand out pardons like candy?
Certainly not, why would you think that? He sells them.
The real question is: does this immunity also extend to the vice-president? Because that could be a fascinating situation. (Anyone else been watching The Boys?)
Dissent starts on the 68th page of the PDF.
The decision also declares pardons unreviewable. (Way to stick to the matter at hand.)
And while murder is a state offense, I suspect the involvement of our putative Seal Team Six would allow it to be bumped to the federal courts.
Although maybe at that point it's still a state offense if convicted, just handled procedurally by a federal court? Not sure.
Just gotta wait until the target is in DC or international.
So the structure of dictatorship is now in place and will remain there even if Biden (or some as-yet-unidentified successor) beats Trump because there's no way to review Supreme Court decisions without new justices, and we'd never ever think of upsetting that delicate balance, it would be an unheard of break in norms.
I would fully expect a Republican president in office at the time of this decision to immediately think: "what can we do with this now that we have it."
Biden can drone strike the court
Follow up to 23. So, this is going to sound a mess. Marburg v. Madison basically said that the Supreme Court is the final arbiter of what's constitutional. And yet, I find myself thinking that this decision is not just wrongly decided but that it violates our Constitution when it puts the President above the law and makes a mockery of our separation of powers, fundamentally re-ordering how our Government is constituted.
So, it seems to me that there is a duty to push back somehow using the political process. The only way I know would be to expand the Court. What is the check to the Supreme Court?
26: Thomas was bribed. That seems like a reasonable thing to do. I see that AOC wants to file impeachment proceedings. How do we fight back? Are these decisions impeachable offenses?
My headline (for the whole term)
As Part of Ongoing Right Wing Coup. Supreme Court Grants Itself and Republican Presidents Vast Powers.
Does anyone here have an LA Times subscription? I'd like to read Chemerinsky's OpEd.
Try a new browser, maybe? I got it to load without a subscription.
Any thoughts on Jackson's dissent (p 98 of PDF)?
Adam Serwer whipped up a quick response, no surprises but forceful.
Paraphrasing Tom Lehrer.
They may have yielded all the power, but we had all the good dissents.
Also, in fact, on the verge of performative contradiction!
Does this vindicate Nixon's, "When the president does it, that means that it is not illegal"? The kind of thing Frost was asking about is probably within the penumbra of "official acts". (I think it was about spying on protesters, not specifically the Watergate break-in.)
Does this immunity extend to other parts of the executive branch or is it just the President? Like, does the Secretary of Homeland Security also get immunity?
I am withholding judgment until the NYT Editorial Board weighs in.
The NYT has reassured me that this "Ruling Further Slows Trump Election Case but Opens Door to Airing of Evidence
The Supreme Court's immunity decision directed the trial court to hold hearings on what portions of the indictment can survive -- a possible chance for prosecutors to set out their case in public before Election Day."
Glad they're making clear the stakes of potential dictatorship if Trump wins.
The Supreme Court changes composition slowly but inexorably. If we'd elected Clinton in 2016, everything would be different. It's too bad that just enough people thought that it wouldn't really matter that we end up with it mattering a whole lot.
The irony is if she had won the court would have been more restrained and maintaining the status quo in which case people would have said See it didn't matter much.
42: Maybe we should have had Biden. 8 years in we'd be facing a Republican president, but likely one less insane than Trump.but I'm not sure that our Republic will last that long.
I'm still in shock over this past week. They've really gotten everything they've been working towards for decades.
I guess it's a good sign that they're still writing majority opinions instead of just transcribing undisguised fart noises.
Does this vindicate Nixon's, "When the president does it, that means that it is not illegal"?
No, it's still illegal, it's just that he will never get prosecuted for doing it. Like bike theft is still technically against the law but the police never bother to investigate or arrest or charge anyone for it? Like that but for all crimes.
Motion already filed in NY case. Theory is not that conviction used evidence from official acts when he was president not that any of the specific actions were immune (some of course before he was president). Uses the part that ACB did not sign onto I think. (Or was that "no motives" part.)
Realize I am not clear on the actual rules* on the scope of Supreme Court action. Could the Court ever re-examine prior rulings without a suit . For instance this monstrosity, or Shelby where all of Roberts "assurances" were immediately trampled on. (In those cases it would be some future hypothetical SC with a composition that it will never have in my lifetime.) Or something like the current court tiring of the years ling process of nibbling at rights while waiting for the right manufactured lawsuit to finally kill it off.
*Ok, sure it's of course really Calvinball.
At least we have a successful men's soccer team to watch.
Their disastrous 2nd game of the Copa was literally in Atlanta the night of the debate. And then celebrated the immunity with a frustrating loss last night.
Soccertology recapitulates political despairtology and vice versa
And they got screwed by an incompetent judiciary too. Although I guess the one goal didn't matter, they needed a win not a draw.
52: Yeah, officiating was a hot mess.
Could the Court ever re-examine prior rulings without a suit . For instance this monstrosity, or Shelby where all of Roberts "assurances" were immediately trampled on.
If they could, this court would have just re-examined Chevron and Roe v Wade in the first place.
54: Right. *So far* they have acted in accord with norms/rules to that effect, but as they are emboldened in their iniquitous behavior who the hell knows.
Institutionalist John Roberts knows you don't eat a pig destroy an institution like that all at once.
Reference.(I think I posted it recently in some other context.)
https://www.youtube.com/watch?v=vATVsdYLRT0
||
a Shabaab that has become adept at drone use, is always inventing new ways to unleash IEDs in addition to its old method of using donkeys|>
36, 47: Ketanji Brown Jackson dedicates her dissent to explaining exactly this point: that it is not like stealing a bicycle, it really does mean that if the president does it, it's not illegal, and this is not something that American jurisprudence has heretofore had to contend with.
Put simply, immunity is "exemption" from the duties and liabilities imposed by law. In its purest form, the concept of immunity boils down to a maxim--"'[t]he King can do no wrong'"--a notion that was firmly "rejected at the birth of [our] Republic"... Thus, being immune is not like having a defense under the law. Rather, it means that the law does not apply to the immunized person in the first place. Conferring immunity therefore "create[s] a privileged class free from liability for wrongs inflicted or injuries threatened."
49 There are a lot of petitions every year, and it would be easy to find one for a vehicle for pretty much anything. The Erie Railroad Company was not calling for Swift v. Tyson, a century old settled law, to be overturned in Tomkins, and yet here we all are.
62 Yes, this is a huge fucking deal.
The guy who wrote Uncommon Law brought a real case that seems to have become a precedent for modern Parliamentary privilege, ex parte Herbert, when the court said Parliament letting alcohol be sold on its premises without reference to licensing laws was an internal matter not subject to judicial inquiry. Herbert wrote a satirical follow-up on the implications of such immunity, where a judge following this precedent released two people charged with participating in illegal gambling on the premises, because it could relate to Parliamentary business, and he decided the precedent barred him from even letting questions be asked about it - penumbras, possibilities.
And it appears the US judiciary now follows that penumbral logic when enforcing, for example, the speech/debate clause, blocking even questioning of members of Congress when it might require them to talk about their speech or debate acts, even if they're not charged with anything and are just testifying about a non-member.
Further to 63, my civ pro professor told us that Tompkins' lawyer had received a decent settlement offer not long before the opinion was issued, and didn't tell the client about it. Whoops.
(OK, non-lawyers, this is a case that every lawyer knows, and has been cited several zillion times. Under Swift v. Tyson, federal courts applied federal common law to diversity cases before them where there wasn't a federal statute. In Erie v. Tompkins, the SC decided that federal courts should apply state law in diversity cases. Injured by a train, Tompkins had a decent case under federal common law but a loser under Pennsylvania law.)
I find myself, asking ina. Weirdly maudlin, way, how could Supreme Court justices no love their country/ be more patriotic. Like, even if you disagreed with Dole vehemently on policy, I can't imagine him doing anything so contrary to the wishes of the Founders.
If you love your country more than you love your RV, maybe you have a shitty RV.
69: I just. Assumed! You were doing. A. Shatner impression.
On the serious point: why would you assume they like anything at all about their country? They're wealthy ultraconservative Catholics! Their country is a cesspit of secular liberalism! They want to fundamentally restructure everything about it!
We have them over here, the Rees-Moggs and Farages and so on. They don't love their country as it is at present not remotely.
If Trump wins, do you think the court will present him with some kind of jewelry at the ascension inauguration? Well, some of the court.
68: I've had similar thoughts. Like they are so fully informed of all dangers, and they're not preoccupied with reelection like congressfolk, and yet they're burning down the goddamn country. How do they sleep at night.
Meanwhile, outside zombieland:
"An absolute majority seems very unlikely, though we'll need to conduct a poll to be sure," said Mathieu Gallard at Ipsos, the pollster. But he added that it remained "very, very likely" that the RN would win the greatest number of seats. In a drive to build a "Republican front" against the RN, every third-placed candidate from the leftwing Nouveau Front Populaire pulled out, as did almost all of President Emmanuel Macron's Ensemble candidates. But a hung parliament remains a likely outcome, with 91 three-way contests remaining.https://www.ft.com/content/e409e56d-4eac-4567-a60f-b756b1c3dc42
75, 68: We have been learning how countries -- and individuals -- go fascist. This is just the latest lesson. The Federalist Society was always a nightmare, though, and didn't hide it any more than the John Birch Society did.
76: I appreciate the non-crazified contingent banding together to block the crazies, and hope the alliance holds for a bit before someone gets too clever for their own good. The lesson of zombieland seems to be that you only need some fraction of the conservative-centrist old guard to decide it serves their short-term interest to throw in with the zombies.
In this banned analogy, all Americans are zombies.
Right, but we also had all these pundits and others running around saying it wasn't real. Roe wasn't going to be overruled, oh no, couldn't happen. Etc.
You have to clueless at an epic level to think that Trump wouldn't be malevolence personified if re-elected, and that this time even the weak guardrails that had restrained him somewhat last time would be gone.
It occurs to me that Biden was kinda de facto immune from prosecution just by being real old. If he really has had a recent steep decline (and if it is from heartbreak over Hunter's trial, fuck that Republican prosecutor forever), maybe he knows he's near the end of his days. Man would it be awesome if he did ALL the righteous things, declared his new legal immunity and then died of natural causes before it could be sorted out.
Oh look TPM describes how the "official acts" evidentiary bullshit in the opinion is going to immunize Trump in the state trials too and result in a mistrial for his NY convictions. That was too far for ACB but it still go five votes so expect his conviction to be thrown out soon.
82: And still happening:
Richard Fallon, a constitutional law professor at Harvard Law School, argued the ruling does not leave presidential power completely unchecked. Lawless presidential conduct can still be prevented or unraveled by other parts of the Constitution -- for instance, if a president illegally imprisoned a political enemy, that person would be entitled to a court order to go free.
Problem solved...
The rage-inducing unseemliness of the Biden onslaught in the press would is compounded by it happening in the context of the SC stuff compounds it.
They have utterly list their fucking minds.
85: There does seem to be some dispute on that, but, yeah, sentencing postponed until September.
The official acts evidence stuff and the motives parts really do seem to be the cherries on top of the shit sundae. And apparently at orals Roberts seemed to be completely aware and worried about the implications. He seems all in now (despite some mealy-mouthed "moderating" footnotes).
SC majority just an extension of Prohect 2025 at this point.
OT: can we have a general election thread tomorrow?
89 seconded. Rare chance for some good news too
Sure. You know there's an opportunity for you to write your very own guest post on the topic?
It would probably be a good idea to have something written by someone sober up top, to counterbalance all the comments underneath written by increasingly drunk iterations of me.
Post: "What needs to be made clear is that this election is not just a story about Rishi Sunak being a crap campaigner. The long trail of disaster goes back to 2011, when Andrew Lansley..."
Comment: gwaaaan bastards YESSSSS ahahahaha AHAHAHA YSS INTO THE SEA WITH YOU
I will try to put something together - unless one of the other UK types would rather give it a go?
68: You'll be surprised how many mysterious things magically fall into place if you just start from the assumption that all Republicans are shitty, debased people.
Granted, it's not a very charitable take, but as a predictive heuristic, it's awfully close to perfect.
93 and 94: I know. I guess I had this residual belief that the Supreme Court justices were a little bette than the Marjorie Taylor Greens of the world.
From what I can tell, both Alito and Thomas are married to MTG prototypes.
96: They're probably just cranky they didn't get semi-handjobs in the theater. Or was that the other one?
Yes, nothing Alito or Thomas have done has surprised me. I confess to being a little surprised at John Roberts.
98: I'm guessing he's been a bit red-pilled by the criticism of the court. That could have gone several ways, but it seems to have pushed him into letting his freak flag fly rather than killing the republic softly as per before.
A lot of once supposedly reasonable, moderate conservatives (and former centrists, etc. who've gone right) seem to genuinely believe that there's a real revolutionary threat from the left, instead of the reality which is more along the lines of what was once called "hyper-incrementalist bullshit." That's seems to be the permission structure to go hard right while denying they're as hard right as they are.
That cartoon about the guy shaving his head and getting a swastika tattoo while telling the liberal "look what you made me do" but it's the chief justice of the Supreme Court.
Contrary to what hard-left types incessantly insist, turns out that the centre will always side with the left to defeat the far-right, and not vice versa.
With notably rare exceptions.
The Spartacists were defeated by a centrist coalition government, which, the following year, would also face and defeat a rather less bloody attempted putsch by the far right. They were not defeated by an alliance between the centre and the far-right.
It's quite common to find people suggesting that this was the case - just as it's still very common to find people claiming that the Bolsheviks overthrew the Tsar in 1917 - but in both cases it's a retcon of history designed to make one particular faction look good in retrospect.
"Sometimes the centre will side with the left to defeat the far-right and sometimes the centre will side with the far-right to defeat the left" isn't very pithy.
101 Conservatism is so dependent on bad faith as to be indistinguishable from it.
Any movement aimed at increasing the power and privilege of a minority at the absolute expense of the majority, seeking power in a functioning democracy, will always by its very nature depend on bad faith.
Not meaning to continue wallowing* but the post-debate mess is intensifying. Press smells an actual scalp. I am now more thinking it will be Harris announced in a few days. Press beyond unhinged like Afghanistan withdrawal but more. Trump suggest military tribunals, brief notice. But like Afghanistan even relevant info to the actual fucking issue is omitted; Biden did several interviews on black radio yesterday, scant mention only in alternative news sources.
*A lie, I wallow, am a deeply committed wallower, delight in the horror of wallowing. Wallow, wallow, masturbate, wallow.
**My wife and both up in the middle of the night last night.
Her: "What are they going to do about the dog it can't go down all those steps" (one of my kids and his spouse are in throes of buying a house).
Me: "Surprisingly that is not what is keeping me awake at the moment."
re: dem ticket, Edward Snowden has thoughts: darkly amusing to watch panicked dems suddenly searching under the couch cushions for a candidate when kennedy is literally standing right there
112, 111 he's been made aware of an infirm dog in the vicinity
Did anyone give a good answer to this question?
What ended up happening in 1968 when LBJ decided not to run for re-election? Did it go well for us?
115: Yeah, but the convention was in Chicago that year so this is very different.
And the Chicago DSA is on it:
We may not be able to get Biden to change course, but with enough angry people outside the convention center we can make the DNC a complete political disaster for his campaign.
111 My curation protocol keeps me nearly all of this stuff away from me. I don't see Biden wanting to step down, and I'm not sure I see a coherent argument that Harris does better against Trump.
There's certainly no way Newsome does better than Biden. It's not how well someone does in California, New York, and DC. They need have the potential to win PA, WI, GA, AZ.
If there was polling of undecided voters in swing states, that could be significant. Opinion journalists is NYC etc are notoriously unreliable in understanding (or at least describing) what is going on. Their fantasy of a bunch of wise men who can solve the problem is just too good for them to let go of.
My curation protocol keeps me nearly all of this stuff away from me.
Same here. A couple days ago I deleted the Reddit app from my phone, the bookmark from my desktop, and a few other things. I could easily get back there if I wanted, but having it more than one click away has reduced the time I was spending reading doom-filled arguments going in circles.
Of the three leading Democrats who aren't Biden, I'd be most optimistic about Whitmer.