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Just wondering (IANAL), if the president's duty is to “faithfully execute the laws”, then wouldn’t subverting those laws be outside of his official duties, and therefore prosecutable? I know it sounds like the kind of ridiculous argument Trump's lawyers would make, but still… #SCOTUS

@AltonDooley EXACTLY, and that’s exactly what the Supreme Court ruling tried to emphasize, that so many people are missing.

SCOTUS emphasized in their opinion that subversion of laws is no grounds for immunity. The president only has immunity from prosecution for actually legal things.

So many don’t understand what this case was about, since there was so much misreporting about it.

@Hyolobrika well, they explained at length, but some key quotes may be:

“The parties before us do not dispute that a former President can be subject to criminal prosecution for unofficial acts committed while in office.”

“If the President claims authority to act but in fact exercises mere “individual will” and “authority without law,” the courts may say so.”

The ruling is absolutely clear: if the president subverts laws he is prosecutable.

This case was never about subversion of laws, though a lot of loudmouths claimed (and claim) otherwise.

https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

@AltonDooley

@Hyolobrika sure, I just wanted to make sure to cite my source.

But I go one step farther, as the SCOTUS emphasizes that only legal acts can be official.

Therefore, I phrase it as, “immunity for [legal] acts”

It’s not the sky falling to say that.

@AltonDooley

@Hyolobrika @AltonDooley @volkris No. Quite the contrary. The President is given absolute immunity for "conclusive and preclusive" "official acts" including "commanding the Armed Forces of the United States; granting reprieves and pardons", and "at least presumptive immunity" for all other official acts. The majority explicitly states that "Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law." 1/

@Hyolobrika @AltonDooley @volkris People understandably presume reasonableness of the Court, try to fill gaps in in such a way as you could say, look, this is a balanced measure to prevent harassing or politically motivated prosecution while continuing to ensure that Presidents follow the law. But read the text. It is not that, not at all. It provides absolute immunity for actions with sufficient scope to order violent lawlessness and protect perpetrators from any criminal accountability. /fin

@interfluidity the key point is, absolute immunity is only recognized for legal actions.

Can you cite legal basis for ordering violent lawlessness? Seems like a tall hill to climb.

If you can’t cite legal basis for that action, then no, the text does not provide it.

@Hyolobrika @AltonDooley

@Hyolobrika

It’s procedural. It always was.

Here’s a key thing to emphasize that’s CONSTANTLY left out of descriptions:
This is NOT immunity from punishment.
It’s immunity from prosecution.

To put it a different way, the Court says the accused doesn’t have to go through a trial and wait for conviction and wait for the appeal to get the case overturned, no, the feds can’t haul a person into trial in the first place under certain flawed accusations.

It just gives a shortcut to fixing a flawed–or overreaching–prosecution is all.

@AltonDooley

@volkris @Hyolobrika @AltonDooley that is simply not true. absolute immunity is not distinguished by lawful or unlawful actions. there’d be no reason for that. no one needs immunity for lawful actions. prosecutors are explicitly enjoined from even *inquiring* into whether “official acts” are motivated in order to break the law. for “conclusive and preclusive” official acts, including commanding the military + providing pardons, immunity is absolute and automatic.

you misunderstood the decision.

@Hyolobrika sorry for the double-reply, but I realized an analogy that might be clarifying:

Trump falsely claims that he was tried and convicted without being charged. That would not have been legal prosecution. Actually it would have been insane.

IF it was true, he could have appealed quickly, before trial, to get the prosecution itself declared invalid. Courts could have nipped such insanity in the bud.

Same thing here. This isn’t about guilt, but about whether the prosecution itself is legally valid, before trial predicated on potentially invalid legal process.

Unlike Trump’s claims, these were reasonable, and the Court said some charges were valid and some weren’t. The valid claims can proceed to a valid trial.

@AltonDooley

@interfluidity you say there is no reason for that, but the reason for that is staring us in the face: IF a person is being prosecuted for something that’s not illegal in the first place, that’s a strong call for immunity from improper prosecution!

And that’s what this is all about, reigning in an administration that’s overreaching in its prosecution.

When people get hung up on the motivation aspect they’re missing that there are some things that current law allows regardless of motivation. AND we can democratically change that law if we wish, adding in the motivation aspect.

Other authorizations are more limited, hence the categorical tiers that came out in this ruling.

Regardless, to claim immunity from prosecution the accused would first have to demonstrate that their actions have legal basis.

There’s no automatic get out of jail free card here.

@Hyolobrika @AltonDooley

@volkris @Hyolobrika @AltonDooley again, you are just wrong on the facts. if a person is being prosecuted for something not illegal, the remedy is acquittal, not immunity. 1/

@volkris @Hyolobrika @AltonDooley there is nothing about this decision we can democratically change. the Supreme Court has declared absolute immunity for exercise of the President’s “conclusive and preclusive” powers part of the Constitution itself (defying history and literacy to do so). they have not conditioned this immunity on the exercise being otherwise legal. only the Supreme Court itself or a Constitutional amendment can undo this. 2/

@volkris @Hyolobrika @AltonDooley There is absolutely an automatic “get out of jail card” here. Not for all of the current Trump prosecutions, because some of what he’s being prosecuted for are arguably not “official acts”, and not “conclusive and preclusive” official acts. Trump’s prosecutions are now extraordinarily unlikely to succeed, but they can continue. But future Presidents have a clear map of how to act illegally without consequence. 3/

@interfluidity sure acquittal is A remedy, but there’s nothing particularly unique about getting the case thrown out before trial based on the unlawful prosecution.

It’s a practical way to deal with an overreaching administration, one that saves all the time and expense of going through a trial that was inappropriate in the first place.

Heck, for a prosecutor to approach the courts with an unlawful process is itself a pretty big problem, that the courts recognize in cases like these!

Yeah, the administration could haul a person through an unlawful process and the person can appeal after… but why?

@Hyolobrika @AltonDooley

@interfluidity

Again, if they were acting illegally then this ruling doesn’t protect them.

This ruling only provides protection from prosecution over legal actions.

@volkris @Hyolobrika @AltonDooley this decision is not at all what a Supreme Court would have done if its concern was reigning in politically motivated prosecution while retaining an accountable executive. in its own words, it places as ensuring “energetic”, “unhesitating” executive above any concerns about accountability. https://drafts.interfluidity.com/2024/07/05/if-the-issue-was-the-lawfare/index.html /fin

@volkris @Hyolobrika @AltonDooley Courts can and should absolutely throw out a malicious prosecution upon first contact. Usually there is an immediate motion by the defense to dismiss, have it thrown out because the prosecution lacks basis. All of us have the right to make such a motion, and any judge has a right to rule in favor of the defense and the case is over. That’s ordinary in criminal law. No immunity required.

@interfluidity that IS a form of immunity!

So that’s all this is, just a statement that courts must throw out invalid (malicious or otherwise faulty) prosecution upon first contact.

@Hyolobrika @AltonDooley

@volkris It does not! What do you think “absolute immunity” means?

@interfluidity people keep saying “absolute immunity” without finishing the phrase.

It’s absolute immunity from invalid prosecution.

The Court and the parties before the Court are all clear that it’s perfectly fine to prosecute a former president–he has no immunity at all from prosecution if the charges are valid.

@interfluidity

Except that this case and its resolution was itself an exercise of accountability against an executive that was engaging in faulty prosecution.

To ignore the overstepping of the Biden administration here, THAT would have been letting the executive go without accountability.

The Supreme Court decision here made clear that former presidents are still to be held accountable for following the law, are still subject to prosecution for lawlessness.

It’s just that, the current president too has to be subject to law in his decisions to bring down the hammer of prosecution on civilians.

@Hyolobrika @AltonDooley

@volkris @Hyolobrika @AltonDooley my god you are wrong. you might think Trump's prosecution's are malicious or not, whatever. but this is not a narrowly tailored decision that would only affect malicious prosecutions. it is explicitly immunity, explicitly even for acts that are alleged to be, and might prove to be if examined, unlawful.

@volkris @Hyolobrika @AltonDooley

No. Courts must always throw out cases that are on their face "invalid (malicious or otherwise faulty)". The problem is, when a lawsuit or prosecution occurs, there is often a dispute over whether a suit is "invalid (malicious or otherwise faulty)". 1/

@volkris @Hyolobrika @AltonDooley Courts then must inquire into the dispute as a factual matter.

Immunity is quite distinct.

"The essence of immunity 'is its possessor’s entitlement
not to have to answer for his conduct' in court."

That's John Roberts, from the decision. That is quite distinct from saying Courts must examine a prosecution in any way at all, and dismiss the bad ones. It says Courts have no business examining or evaluating an allegation at all. That is what immunity means. /fin

@volkris @Hyolobrika @AltonDooley This case *explicitly* grants *absolute* immunity to Presidents for their compelling a justice department to engage in prosecutions, political, malicious, or otherwise.

It does not protect civilians at all, other than the President himself, and those the President pardons.

If Joe Biden hates your grandma and tell Merrick Garland to throw the full weight of the Justice Department into finding dirt to lock her up, the decision IMMUNIZES Biden for that conduct.

@realcaseyrollins @AltonDooley @volkris @Hyolobrika Yes, but until a week ago, if Presidents used that control to contrive malicious prosecutions, once they became a private citizen they faced risk of prosecution for that crime.

Now they face no such risk, are absolutely and explicitly immunized for whatever they do in directing their DOJ

This decision has *legalized* malicious prosecution for everyone else, ostensibly in order to remedy the possibility of malicious prosecution of a President.

@interfluidity @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika I'm sorry, I haven't read the full ruling yet and am hesitant to panic without doing so. Maybe you can educate me here. Can you cite the part of the ruling that allows the #POTUS to weaponize the #DOJ?

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika Sure.

@interfluidity @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika

> The #POTUS may discuss potential investigations and prosecutions with his Attorney General and other #DOJ officials to carry out his constitutional duty to "take care that the laws be faithfully executed."

That doesn't sound like #POTUS can have the #DOJ go after anyone for any reason to me. Can you explain how the above quote also includes malicious intent as a reason a #POTUS may have someone prosecuted by the #DOJ?

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika driving now. later.

@interfluidity @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika Fair enough, no need to rush. Take your time.

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika OK. Here's the key stuff:

"the Executive Branch has 'exclusive authority and absolute discretion' to decide which crimes to investigate and *prosecute*...Investigative and *prosecutorial* decisionmaking is “the special province of the Executive Branch,”…and the Constitution vests the entirety of the executive power in the President, Art. II, §1… *For that reason,*…" 1/

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika "Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority."

The emphasis (the *xxx* signalling italics) is mine. 2/

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika Note this does not refer merely to discussions. It refers specifically to prosecutions and prosecutorial decisionmaking. The President can decide who to prosecute. The Constitution, Roberts claims, vests all decisionmaking power surrounding prosecutorial choices in the President, as a "special province". *For that reason* it falls within the "'conclusive and preclusive' Presidential authority" + commands absolute immunity. 3/

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika This is one of the key logical themes of the entire decision: Some Executive authorities are deemed to be shared with Congress, but others to be solely the province of the Executive, personified by the President. Where they read Constitutional authority not to be shared, Congress — the maker of laws — cannot regulate Him. *Not* providing immunity in this sphere, subjecting the President to Congress' laws… 4/

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika would violate the Constitution's "separation of power" principle, in the Court majority's view. The President has "absolute immunity" in these domains because acts of Congress or the Courts — laws and the infrastructure of their enforcement — simply have no power to reach this "special province", this "conclusive and preclusive' Presidential authority". 5/

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika And prosecutorial decisions, not just discussions, not just personnel decisions, are proclaimed to be within this domain. Congress and its laws have no authority to regulate whom the President chooses to prosecute, says the majority, so of course Congress' laws can have no authority here. 6/

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika The domain of prosecutorial decisionmaking, the decision very clearly proclaims, is within the sphere of absolute Presidential immunity that the decision here and elsewhere defines. /fin

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika if it sounds fine and dandy, well your opinion is your prerogative.

But i hope we share an understanding of the holding. Prosecutorial decisions are the sole province of the President, not regulable by Congress' laws. So there can be no such thing as an "illegal" or "invalid" prosecution. The President can prosecute whomever, whyever He chooses, however unfounded or "malicious" the basis for those prosecutions might be.

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika The President can face no legal accountability for those choices. No public or judicial process can inquire into their motivations, no Congressional act can regulate them in any way.

I think that's pretty fucking scary, and deeply threatening to any social order other than authoritarian tyranny.

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika But sure. If you think absolute immunity for even malicious prosecution is fine and dandy, you my good friend are just as entitled to your opinion on that as I am to mine.

I am glad we agree on the facts of what was held by the Supreme Court of the United States, one week ago.

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika No. Prosecutors never know whether crimes have been committed. They allege, based on lesser or greater evidence. The accused is innocent until proven guilty. Prosecutorial decisions are not restricted to which "crimes that have been committed" to prosecute. You've made that up entirely. It's nowhere in the decision, or my screenshot of it, and it couldn't be, since there is no certain crime before the prosecution. 1/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Where in that screenshot (or elsewhere in the decision) do you think you see that kind of restriction? You don't. You are making it up, imputing it. 2/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika What distinguished malicious prosecution from other prosecution isn't prosecution where "there is no crime". Malicious prosecution is prosecution where the evidence is weaker than it ordinarily would be to prosecute, or perhaps even nonexistent, motivated for some purpose other than evenhanded enforcement of the law. 3/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika The decision protects those prosecutions, because it claims no law from Congress can regulate prosecutorial choices at all, including the motive for those choices, their even-handedness, or their evidentiary basis. 4/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika You and @volkris are intent on adding caveats and limitations to the decision that simply do not exist in its text or its logic. It's one way to cope, I guess. /fin

@interfluidity @AltonDooley @realcaseyrollins @volkris @Hyolobrika Why are you projecting? You’re the one saying the ruling says that #POTUS can use the ruling’s reason to maliciously prosecute people while citing part of the ruling that only gives #POTUS to have people prosecuted who broke the law lol

Again, I haven’t read this ruling, but you’re kind of embarrassing yourself by so fiercely propagating a position without being able to cite it at all in the ruling’s text. It makes me doubt that your position is truly sound.

No. Prosecutors never know whether crimes have been committed.

Of course not. However, let’s say that #Trump says “I want #JoeBiden in jail, go find something” to the AG. something like that isn’t covered, because there’s no pursuit of the law in that case, you’re pursuing a person.

Where in that screenshot (or elsewhere in the decision) do you think you see that kind of restriction? You don’t.

Maybe you don’t if you didn’t read it, but I found it and pointed it out here in case you forgot it:

https://noauthority.social/users/realcaseyrollins/statuses/112752214824759357

Notice how I said that it didn’t support your position, asked you how it does, and you still didn’t answer…seven hours and several angry replies later 😂

Malicious prosecution is prosecution where the evidence is weaker than it ordinarily would be to prosecute, or perhaps even nonexistent, motivated for some purpose other than evenhanded enforcement of the law.

And see this is the weird thing, you can be spot on here, but then go off the rails in your other replies. It’s insane!

@Hyolobrika @AltonDooley @realcaseyrollins @volkris @interfluidity Yes. I pointed that out hours ago. Homie musta forgot 😂

https://noauthority.social/users/realcaseyrollins/statuses/112752214824759357

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Yes. Every prosecution is allegedly against “defendants who violate the law.” Every Federal prosecution is performed under the President’s authority to “take Care that the Laws be faithfully executed.”

Every *malicious* prosecution alleges a violation of the law, and is pursued under the authority of the “take Care” clause. Every one. 1/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Under this decision, no one, no law, no Court, can review whether any allegation that the law has been broken has any basis. A President and his Attorney General can simply make up an allegation of a violation of law and prosecute it. 2/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika That prosecution would occur under the President’s authority to “take Care that the Laws be faithfully executed.”

However, again, no law, no Court, has any authority to inquire into whether the prosecution serves that function, or in fact subverts the law. Congress cannot regulate prosecutorial decisions, and Courts cannot inquire. 3/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Please read the separation of powers discussion earlier. I don’t want to repeat myself. 1/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika The basis for the portion of the decision regarding DOJ and prosecutorial decisions — it’s in that screenshot! — is that prosecutorial decisions fall under the “‘conclusive and preclusive’ Presidential authority”, which no laws by Congress or acts by courts can regulate, the “special province” of the Executive. 2/

That prosecution would occur under the President’s authority to “take Care that the Laws be faithfully executed.”

How could a malicious prosecution occur under the #POTUS’ authority to “take care that the laws be faithfully executed” if taking care that the laws be faithfully executed isn’t the intent?

However, again, no law, no Court, has any authority to inquire into whether the prosecution serves that function, or in fact subverts the law. Congress cannot regulate prosecutorial decisions, and Courts cannot inquire.

So, this opens up an interesting question of, what happens if someone violates a #SCOTUS ruling. I don’t know the answer to that question.

But I am curious; what makes you say that #Congress can’t regulate prosecutorial decisions? Is that in another part of the #SCOTUS ruling?

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika As requested, here is the paragraph of the decision that says that. /fin

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika See the screenshot just added. Once the Court determines something is a "conclusive and preclusive" Constitutional authority, Congress is disabled from acting upon it, and the Courts have no power over it. The first screenshot we discussed (which comes later in the decision than the second) places prosecutorial decisions among "conclusive and preclusive" Constitutional authorities.

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika I'm adding the second screenshot again, because it seems to be diverted from the thread.

prosecutorial decisions fall under the “‘conclusive and preclusive’ Presidential authority”, which no laws by Congress or acts by courts can regulate

Where does it say in the #SCOTUS ruling that ALL prosecutorial decisions cannot be infringed upon by laws of #Congress, not just the prosecutions that were mentioned in the screenshot you shared?

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika When the first screenshot (regarding prosecutions and the Attorney General) refers to prosecutorial decisions, it refers to all actions by the President with respect to prosecutorial decisions. It is not clear to me whether that would bring in prosecutorial decisions by, say, a DA making those decisions on his own. Those might or might not still be regulable! 1/

@interfluidity @AltonDooley @realcaseyrollins @volkris @Hyolobrika Okay I see your reasoning here. My problem with your take though, is that to say this applies to all prosecutions presumes runs counter to the #SCOTUS ruling stating that the very power which your second screenshot refers to, which cannot infringed upon by #Congress, is limited to being used in pursuit of the law, as described in your first screenshot. Perhaps additional motives for prosecution are covered, I don’t know yet, but you haven’t cited part of the ruling that establishes that thus far.

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika But the text is quite clear that a President's actions with respect to prosecutions and prosecutorial decisionmaking, including and discussion or instruction He gives directly to subordinates, is within the special domain, the sphere of "conclusive and preclusive" authority that is beyond Congress and the courts. /fin

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika So. Much of the decision concerns the distinction between official and unofficial acts. If the President's prosecutions are not in fact to "take Care that the Laws be faithfully executed", in pursuit of violators of law, then you might argue they are not "official acts" at all, and there is no immunity for whatever a President does that is not an official act. 1/

When the first screenshot (regarding prosecutions and the Attorney General) refers to prosecutorial decisions, it refers to all actions by the President with respect to prosecutorial decisions.

No, as I’ve pointed out several hours ago (https://noauthority.social/@realcaseyrollins/112752214824759357), it refers to prosecutorial decisions that are performed in order to make sure that the law is being followed:

The #POTUS may discuss potential investigations and prosecutions with his Attorney General and other #DOJ officials to carry out his constitutional duty to “take care that the laws be faithfully executed.”

But the text is quite clear that a #POTUS’ actions with respect to prosecutions and prosecutorial decisionmaking, including and discussion or instruction He gives directly to subordinates, is within the special domain, the sphere of “conclusive and preclusive” authority that is beyond #Congress and the courts.

Only insofar as they fall within the bounds of the ruling, sure, but that doesn’t include malicious prosecutions from what you have shared me thus far.

@interfluidity @AltonDooley @realcaseyrollins @volkris @Hyolobrika Yes, that is my reasoning.

As you’ve demonstrated here, this clearly isn’t how everyone sees the ruling, so I suppose that a future #SCOTUS (though likely not this one) might see things differently.

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Suppose some prosecution is somehow established not be consistent with "tak[ing] Care that the Laws be faithfully executed". Would instructing an AG to pursue that constitute an official act because it takes the form of an official act (the President instructing a subordinate officer), or by virtue of its deviation from constitutional authority, could be deemed an unofficial act? I don't think the decision is clear. But. 2/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Wait for it please.

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika But. The decision is very clear about how one might — or really might not! — establish that an act is not an official act. Let me show you another screenshot. 3/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Let's emphasize.

1. "In dividing official from unofficial conduct, courts may not inquire into the President's motives."

2. "Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law." 4/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika So.

Suppose you take the most charitable read of the text we discussed before, and claim that a prosecution that had no basis in "tak[ing] Care that the Law be faithfully executed" would be render it an unofficial act, despite appearing from the outside every bit like an official act. 5/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Then for a court to touch the President for that out-of-bounds prosecution, it would have to somehow be established that what appears to be a valid prosecution, based as all prosecutions are on an allegation that the law was violated, is not in fact that. 6/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika How, without "inquir[ing] into the President's motives" can you establish that the alleged violation of the law is not only baseless (thin prosecutions happen sometimes, that can't render a prosecution unofficial) but malicious? 7/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Even if you can credibly allege some violation of law by which the President is still ostensibly bound — perhaps the President was bribed to prosecute someone! — that can't weigh into the determination. You can't examine motive, and you can't examine a role in some larger crime. 8/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika If you want to read a limitation in the "tak[ing] Care" clause — a reading the decision does not support, because it grants Trump absolute immunity without suggesting the actions he is accused of fall anywhere near inside the "tak[ing] Care" clause — how in practical terms could you demonstrate that the prosecution was an "unofficial act", without inquiring into motive? /fin

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika ("Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law." is perhaps responsive to some of @volkris's suggestions of where a limitation might emerge, very early in this thread.)

@interfluidity @AltonDooley @realcaseyrollins @volkris @Hyolobrika You make a good point here. The only counter I can think of is, what if #POTUS makes the motive clear, ruling out any need for speculation? Let’s say #Trump says publicly, or in a leaked text, that he wants the #DOJ to investigate, say, #AlvinBragg, for everything he’s done to him in regards to the lawfare he made him face.

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika First, thank you for saying so, and I do apologize for getting exasperated. I promise that whatever I am doing, I am not arguing in bad faith. I have been in a crisis since last Monday, and my family might well end up emigrating because of this decision. Now let me address your counter. 1/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika In the decision there is actually an argument among the conservatives, between Amy Coney Barrett and John Roberts, on just this point. Coney Barrett dissents in part, specifically on the excluding motives part. She uses the example of bribery, quid pro quo. She asks, suppose a President is bribed to pardon. Pardons are within the "conclusive and preclusive" powers of the President. 2/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika So a pardon, per se, can never be a crime. But accepting a bribe to produce one certainly is. It's *quid pro quo*. ACB points out that we might see the *quid* (someone gave the President money), but unless the *pro* is established, it's not a bribe. 3/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika If examining the motivation for a pardon is out of bounds, how can you establish a connection between the *quid* and the *quo*? Again, a pardon alone is under the President's absolute discretion, can never be a crime in and of itself. So without motive, could the prohibition against bribing for a pardon ever be enforced? 4/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Roberts — extremely unpersuasively in my view — answers that the pardon itself is a public act. So, for example, if the wife of a Federal prisoner gave a big sum to a President or to his campaign, and then that prisoner was pardoned, perhaps that would be enough? 5/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Perhaps we can agree that is unpersuasive, because perhaps we have a shared low opinion of Bill Clinton and his ethics. 6/

screenshot from https://en.wikipedia.org/wiki/Bill_Clinton_pardon_controversy

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika We already know, I think, that the mere public act of a pardon subsequent to some nice "donations" is insufficient in practice to establish a bribe. In fact, this Supreme Court has dramatically tightened standards, clarified that only a clear quid-pro-quo is actionable, outright legalized after-the-fact gratuities to state and local officials. 7/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Note that neither Amy Coney Barrett nor John Roberts relied upon the possibility that motive might leak. Evidence of motive (I think!) already exists in Jack Smith's case against Trump. The Court does not consider it, I think because it's now inadmissible, under the may-not-inquire-into-motives standard. 8/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika But suppose evidence of motive was just brazenly public? A whistle-blower leaks a memo to the New York Times, in which a President (idiotically) instructs a pardon be issued in consideration of the spouse's loyal financial support. 9/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika I don't think, under this decision, that changes anything. The Court may not inquire. To bring a public New York Times article into evidence, for the prosecutor to subpoena from the Times a copy, to validate it by interviewing and examining its author or the reporter would be the court inquiring into motive. 10/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika And without some degree of validation, some degree of "inquiry", even what is fully public can only be rumor and hearsay to a court of law. I don't think the court would be able to take into account information about motive that "everybody knows", because converting common knowledge to vetted evidence would be an inquiry to far. 11/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika John Roberts seems to suggest that at least conjectures or allegations about motive might have a role (how else could the mere public act of a pardon become the *quo* of quid-pro-quo?), but i think a plain reading of "courts may not inquire into the President's motives" would also prohibit entertaining conjectures and allegations about motive. 12/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika And even if it did not, how could mere conjecture and allegation form the basis of any criminal prosecution? /fin

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika You also wonder, what if it's not a leak, what if the President himself states his motive on the public record somehow? Could courts at least use that, in deciding whether an act was an official act?

I don't know! 1a/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika The way I characterize this decision is not that it's automatic immunity for anything a President does. Trump, if he loses the election, might still be on the hook, because some of the allegations against him involve actions that may well be unofficial acts. 2a/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika What the decision is is a *roadmap* to Presidents who want to break the law and get away with it. It's fine to instruct your Attorney General to gin up a prosecution against a political opponent. Your discussions and prosecutorial decisions have absolute immunity. 2b/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Even with several of your too-charitable-I-think reading of a limitation in the taking-Care clause, there'd be no way to demonstrate that the prosecutorial decisionmaking was out of bounds without any ability of courts to inquire into motive, even when there is a credible allegation of lawbreaking. 2c/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika But Presidents can still do stupid stuff and get in trouble. If the President instructed his driver to mow down a Congressperson he disliked, Courts would probably pretty easily find that an unofficial act. 2d/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Openly confessing a corrupt motive for actions that would otherwise enjoy immunity I think falls into that category. Yes, there are still ways that a President can be stupid or careless and shed His immunity. But the decision presents a clear roadmap, which if followed, permits a President to act very flexibly without deference to general law, with no way for Congress to regulate or the courts to hold accountable. /2fin

@interfluidity

There is so much focus on motive, but the thing is, the law so often doesn’t really care about motive, and that’s part of the point.

We have law that gives presidents authorization to act regardless of why they are acting. Maybe we should change those laws. Maybe we should change the law to consider motive, although I would say that is a really thorny direction to go, but that’s what we have right now.

The Supreme Court is pointing out that our democratic process produced law that doesn’t care about motive. The Supreme Court is merely respecting that outcome.

Again, we can reform that if we want. We can change the law if we want. It would be a democratic process that in some cases involves constitutional amendment, but we have that power.

In the end, until we make that change, though, this is the law. The Supreme Court is merely working with what we have today, not how you or I might want the law to be.

@realcaseyrollins @AltonDooley @realcaseyrollins @Hyolobrika

@realcaseyrollins The key is not to give presidents the authority to do bad things.

It doesn’t really matter WHY a president is doing something. If a president is saving the environment through bad motives, well, he’s saving the environment!

The US government design was based on the idea that everybody was going to operate selfishly. That’s really the core of checks and balances. That’s why we pay people and we don’t just trust in their angelic motivations.

We want want incentives to be set up such that selfish motives result in positive outcomes. If the law allows presidents to do bad things, then we need to fix the laws.

@AltonDooley @realcaseyrollins @Hyolobrika @interfluidity

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika Criminal law almost always cares about motive. Mens rea. Please tell me where any act you could call “democratic” removed consideration of motive from criminal law in the case of the President, but no one else. Please. I think the Supreme Court made it up all by itself. 1/

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika Yes, we can democratically remedy this, but only by a Constitutional anendment, a bar so difficult, that requires such unanimity + consensus that it’s been decades since we’ve pulled one off. (Or, much more likely, by expanding this Court and having a do-over.)

The Supreme Court made this up. Whole cloth. Nothing in existing law prefigured this decision, especially the motive bit. The whole legal world was shocked by it. /fin

@interfluidity Yes and that is itself problematic, that is one thing that’s being highlighted by this whole case, the mess that we have made with criminal law over the generations.

Criminal law has really wound itself up into a ball, and we’re going to have to deal with that going into the future.

It was always a house of cards. We’re beginning to see how it crumbles.

So we have these legal grants of authority that didn’t involve motivation running up against criminal law that does involve motivation, and you see what a mess that is?

That’s what the Supreme Court is dealing with here, the mess of law that has been created through statute. Aunt this is really just reflecting the mess that has been made of it all.

@realcaseyrollins @AltonDooley @realcaseyrollins @Hyolobrika

@interfluidity

Yes it is a bar so difficult that it requires the public to be on board🙂

Welcome to democracy.

@realcaseyrollins @AltonDooley @realcaseyrollins @Hyolobrika

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika The Supreme Court just said, quite plainly and openly, that the Constitution, not merely the law, allows the President to do bad things. All we can do is fix the Constitution (or the Court, that rewrites the Constitution by interpreting it).

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika there’s the kind of democracy that requires a majority to be on-board, and the kind that requires consensus, all 350 million of us to be on-board. The latter is “democracy” in name only. In reality it is paralysis.

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika I don’t understand why, if the issue is criminal law as a whole is such a terrible mess, it should crumble only for the President of the United States while the rest of us remain on the hook.

That seems like a very particular, engineered outcome, not the result of sone unwieldy chaotic accretion over the centuries.

@interfluidity It doesn’t only crumble for the president of the United States. That’s not what happened.

In fact, a whole lot of people are pissed off that that’s not what happened.

The Supreme Court didn’t judge Trump. That’s not its role in the system. That’s for lower courts. Instead, the Supreme Court issued an opinion that applies to everybody, with a general rule that really applies to officers in general.

The Supreme Court said that the the executive branch may not prosecute anybody for carrying out their legal duties as per law. No matter the mess that might exist out there, the president cannot, effectively, harass people for doing what is legal.

That’s the long and short of it.

It was basically saying that no matter what mess the criminal statutes may be, the president may not harass people for doing legal things.

I remember hearing all of the criticisms of the court after oral argument when people were pulling their hair out that justices weren’t laser focused on getting Trump. But they weren’t because that’s not their job.

So you say you don’t know why it would crumble only for the president, and that’s not the case, it doesn’t, the Supreme Court laid out a general rule regardless of the people complaining that it was looking to lay out a general rule.

And regardless of the dissenters who often seem completely oblivious of what the Supreme Court is supposed to do in the first place.

@realcaseyrollins @AltonDooley @realcaseyrollins @Hyolobrika

@interfluidity Yeah democracy is hard isn’t it?

It’s a whole lot easier if you can just make rules without worrying about the messiness of the people. But then, that’s why we have democracy.

@realcaseyrollins @AltonDooley @realcaseyrollins @Hyolobrika

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika i mean, yeah, i agree, this puts us all at risk.

but the enforceability of criminal law crumbles only for the President here. the rest of us are granted no immunity from the accreted skein of criminal law.

@volkris @interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika I suppose there is some truth to this, apparently it's legal for #Democrat members of state judiciaries to target #Trump out of animosity, so it would be only fair for #Trump to have the same power.

Still, if the true impact of the ruling is that presidents can have people prosecuted even if they don't think they broke the law because they hate them that's a problem

@interfluidity Oh we are!

This decision reinforces the idea that invalid prosecutions need to be nipped in the bud. This is a restatement of the idea that when the administration takes a run at anybody without a valid process, that has to be kicked out of court right away without having to go through trial and appeals process.

This decision does apply to all of us, most directly to any government officials, but more generally to all of us if the administration tries to charge someone without solid legal basis.

Again, that’s why despite criticism the Supreme Court was looking to a general rule and not focusing on Trump himself, because this rule applies to all of us.

@realcaseyrollins @AltonDooley @realcaseyrollins @Hyolobrika

@volkris @interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika

> This decision reinforces the idea that invalid prosecutions need to be nipped in the bud.

How does it do that?

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika no. democracy does not mean near complete consensus or paralysis. that’s tyranny by the veto power of any small minorities. 1/

@realcaseyrollins

Right, the true impact of this ruling is to bind the hands of the administration against prosecuting people without legal basis, and that goes both ways.

Heaven forbid Trump get elected president, this ruling prevents Trump from prosecuting Biden for his policies on immigration.

@interfluidity @realcaseyrollins @AltonDooley @Hyolobrika

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika we created an antidemocratic tyranny on purpose (although we did not expect it to bind quite as strongly as it has in recent decades) to lock-in the form of democracy the Constitution establishes. we made amending the Constitution antidemocratically hard. 2/

@volkris @interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika That's a good thing, I suppose, but I'm not sure that it prevents #Trump from prosecuting #JoeBiden for prior crimes for malicious reasons, or #JoeBiden from prosecuting #Trump

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika bur Marbury v Madison gave us another way to amend the Constitution, through judicial reinterpretation. And that requires a mere majority among nine imperfect, ideological, corruptible individuals. /fin

@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika it prevents Trump from prosecuting Biden, with or without basis.

it enables Trump or Biden to prosecute anyone and everyone else, also with or without basis.

@realcaseyrollins

I might be repeating myself, I can’t keep track, but when people talk about this being about immunity, too often they don’t specify immunity from what.

This is not immunity from punishment. This is immunity from prosecution.

The accused could always go through the whole process, go through the prosecution go through trial get convicted and then appeal and go through the case involved in the appeal. That doesn’t really change here.

What changes here is that the court clarified that you can’t even prosecute someone, much less bring them to trial. This clarifies that a person accused without legal basis doesn’t have to go through the whole rigmarole, they can immediately halt all of the proceedings at the beginning, with needing to go through the whole thing to get to appeals.

So that’s why I say this nips it in the bud. And that’s the major result.

This whole thing was purely procedural. And it clarified the procedure of avoiding a legally invalid prosecution, before court.

@interfluidity @realcaseyrollins @AltonDooley @Hyolobrika

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika it does not. it grants immunities to the President (and anyone He pardons). none to the rest of us.

@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika it nips the whole thing in the bud, but only for the President and those he pardons, and irrespective of whether the President did the crime or not. obviously, without prosecution there is also no punishment. it nips it all away, only for the President and those He pardons.

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika I'm fine with anyone being prosecuted TBH, but it's not clear to see a way that this #SCOTUS ruling prevents what various #TDS sufferers in state judiciaries have done to #Trump from being done to other people by a future #POTUS.

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika

To be fair, I don't think this is a marked change in #USA policy; #Obama likely had #JamesComey clear #HillaryClinton of wrongdoing ahead of the 2016 election, and #Trump heavily insinuated that he had the power to have the #FBI go after #HillaryClinton after he got elected, to minimal backlash from legal experts at least from what I noticed at the time

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika #Trump rightly decided that it would not be good to weaponize judiciaries against his political enemies. Unfortunate that #Trump's enemies do not see things the same way.

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika if you think Trump's prosecutions are unfounded and malicious, this decision will prevent similar prosecutions of ex-presidents, but it certainly won't prevent unfounded or malicious prosecutions of anyone else. 1/

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika (actually, it won't even prevent unfounded or malicious prosecutions of ex-presidents based on ginned up allegations about pre- or post-Presidential unofficial acts! so if you really think weaponized prosecution of political rivals is the problem — which John Roberts plainly does! — this decision narrows the target but increases the range!) 2/

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika (it may thus be ineffective on its own terms!) /fin

@realcaseyrollins

If you’re fine with administration prosecuting anyone, well, that’s just the sort of thing that I’m going to simply disagree with.

Personally I don’t think we should allow presidents, including Trump, to go after their enemies with unfounded prosecutions.

But that’s just me.

@interfluidity @realcaseyrollins @AltonDooley @Hyolobrika

@volkris @interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika You say that as if we disagree on this point lol

@realcaseyrollins this prevents Trump from prosecuting Biden over legal actions that he took.

Biden would still be susceptible to prosecution over illegal actions, just as this ruling says Trump is susceptible to prosecution over his illegal actions.

But I would mainly focus on how this prevents Trump from prosecuting Biden over things like border policy since so many Republicans are chomping at the bit to haul him into court over that specifically.

@interfluidity @realcaseyrollins @AltonDooley @Hyolobrika

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika baseless prosecutions can be dismissed. it’s hard to win a criminal prosecution against a person with resources to defend themselves, even when the accused is guilty, let alone when the prosecution is baseless.

but there’s no remedy for a lawless president immune from prosecution.

we just disagree, pretty strongly, about the balance of harms. 1/

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika and the balance of benefits, since a President can go after his predecessor with full immunity even if the prosecution is malicious, He just has to dig up dirt from before or after the predecessor’s term so the immunity for official acts no longer applies. even the revenge prosecutions the decision purports to remedy is not actually remedied. /fin

@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika I would like to see Biden prosecuted over any actions that are plausibly alleged to be illegal abuses of power. I don’t think those prosecutions would succeed, because I think Biden’s actions (largely inactions) have been well within his discretion. But if there really has been an illegal abuse of power, then he absolutely should be held accountable for it.

@interfluidity Yeah exactly, and that’s what the court said.

Keep in mind that it is entirely within the right of Congress to impeach and Biden over things he shouldn’t have done, legal or illegal, but so long as he was operating within the bounds of what the law says he could do, the next president cannot go after him.

This Supreme Court ruling is actually extremely common sense and honestly kind of boring, and yet people are sensationalizing it way out of bounds of what it actually said.

But that’s just normal. That’s just the state of journalism these days, they flat out say things that are contradicted by the primary record, and they get away with it.

@realcaseyrollins @realcaseyrollins @AltonDooley @Hyolobrika

@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika dude. i’m not the state of journalism. i’m an american and a civil libertarian who has read this decision in full and carefully considered it, and in my view it amounts to nothing less than a coup substantially upending the Constitutional order.

@interfluidity how do you get to that conclusion?

The decision merely points out that in support of our civil liberties the Constitutional order limits the ability for presidents to prosecute.
@realcaseyrollins @realcaseyrollins @AltonDooley @Hyolobrika

@volkris @interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika Yeah I understand concern around the ruling--I had my own concerns about it before this exchange, although I wasn't pessimistic about them--but saying that this #SCOTUS ruling was a coup is a weird take, if we're using the literal definition of the word "coup".

@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika no. it expands the ability of Presidents to prosecute everybody but ex-Presidents for official acts.

i think i’ve devoted all the time i can to explaining why i think this is an invitation to Presidential lawlessness and abuse.

@interfluidity where exactly do you see any expansion of prosecution authority?

As you seem to recognize, it does limit the ability to prosecute for official acts, which was my point, but where do you find a separate expansion in the ruling?

@realcaseyrollins @realcaseyrollins @AltonDooley @Hyolobrika

@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika yes. it limits prosecution of official acts by the president. which means it enables malicious prosecution by the president, as long as he keeps the maliciousness discrete so it is presumptively an official act whose motive cannot be inquired into.

@interfluidity

If the maliciousness is so discrete as to be so undetectable, then this ruling doesn’t really expand anything: if supposed illegality is so gossamer then prosecution over prosecution wouldn’t be in the cards in either case.

Certainly it wouldn’t apply to the end of the world, torches everywhere images that people are trying to dream up.

In the end, though, if law authorizes malicious prosecution, then we really need to fix the law that’s granting that option in the first place as it’s granting the president too much authority.

Or, if there is no such law, then again, this ruling doesn’t apply.
@realcaseyrollins @realcaseyrollins @AltonDooley @Hyolobrika

@volkris @interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika

> In the end, though, if law authorizes malicious prosecution, then we really need to fix the law that’s granting that option in the first place as it’s granting the president too much authority.

Does #Congress have the right to amend the #POTUS' powers in this way? If so, that seems to be the way forward.

@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika that law is this ruling. this ruling immunizes malicious prosecution from any examination into motive and ultimately from any accountability. unless it is a prosecution of a former President for an “official act”, whether that is malicious or merited. 1/

@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika the Supreme Court provided a pathway and a roadmap for Presidents to maliciously prosecute rivals or anyone else with no possibility of accountability. except those former Presidents / official acts. /fin

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika the Supreme Court read this decision into the Constitution itself. Congress cannot alter it. indeed, it is based on “separation of powers” explicitly — the idea that the President has prerogatives Congress cannot regulate. 1/

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika the only remedies are (1) the Supreme Court (perhaps after some personnel changes or additions) revisits and revises/reverses; (2) a Constitutional amendment overrules the Supreme Court; (3) we revisit the Supreme Court’s authority to overrule other branches via judicial review, in place since Marbury v Madison (1803). /fin

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika After listening to #Destiny reading the majority opinion, part of me understands the reasoning for their ruling here. I am not sure that there is anything in the #Constitution about using Constitutional powers "for bad" or "for bad reasons". Both are encompassed under official powers, which we probably don't want to be prosecutable.

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika If we want to amend the #Constitution with "don't be a bad guy, #POTUS" clauses, that wouldn't be the worst thing in the world considering how broad or narrow such amendments might be, but I think I'd rather have immunity for all official acts of a #POTUS than no immunity for official acts of a #POTUS, especially since relevant abuses seem to be narrow loopholes in the ruling.

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika TL;DR the #Constitution allowing for things you don't like isn't the same as #SCOTUS giving a bad ruling, people mad at the ruling should propose a constitutional amendment rather than getting mad at #SCOTUS

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika we do want them prosecutable, though. the bar to successful prosecution should be very high. Justice Jackson emphasizes in her dissent all the hurdles a successful prosecution has to overcome, all the ordinary defenses well resourced defendants generally have against criminal prosecution, plus public action defenses only available to public officials.

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika The lawfare against #Trump has proven that the bar for prosecution may be lowered arbitrarily.

We want #POTUS to be prosecutable, for sure, but probably not for official acts. I don't think I want my #POTUS hit with a #RICO charge for ordering the military to strike terrorists lol

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika except SCOTUS just made this whole framework up. it is written nowhere in the Constitution, prior Supreme Courts and almost all legal scholars did not find its logic implicit in the Constitution. John Roberts invented it and now it is supreme law of the land.

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika Would you mind unpacking what you're saying here? It's not clear what you're referring to by "this whole framework".

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika Trump was not prosecuted for military action. He, like Obama before him, engaged extensively in drone assassination, and that was fine as far as the law and the Biden DOJ were concerned. The public action / public authority defense was already very capacious, a very high bar to clear!

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika (1) presidential acts can be divided into core-official, non-core-official, unofficial acts; (2) all official acts (core and noncore) are “at least presumptively” immune with an almost impossible bar to overcoming the presumption; (3) core-official acts, including exercise of the pardon power, are automatically *absolutely* immune; (4) no inquiry into motive can be made in distinguishing official from unofficial acts…

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika > Trump was not prosecuted for military action. He, like Obama before him, engaged extensively in drone assassination, and that was fine as far as the law and the Biden DOJ were concerned.

Yep, and stuff like this is why I don't really think this #SCOTUS ruling changes much functionally.

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika (5) alleged violation of generally applicable law cannot be a basis for classifying an act as unofficial. all of this was invented into law by the Court on July 1. /fin

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika

> The public action / public authority defense was already very capacious, a very high bar to clear!

I mean, political candidates weren't being targeted for prosecution back then either. The #MSM has inspired a special brand of hatred for #Trump we haven't seen before, leading to #Democrat members of the #JudiciaryBranch in many states doing everything they can to have him convicted out of mere spite.

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika there is a huge difference between a high bar and no bar. the possibility of punishment with a high bar still has a deterrent effect on egregious behavior. no bar, no possibility of accountability, becomes outright permission.

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika

> alleged violation of generally applicable law cannot be a basis for classifying an act as unofficial. all of this was invented into law by the Court on July 1.

What was the legal justification for not prosecuting #Obama for drone strikes?

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika but let's be honest, if it came to someone like #Trump, there would be no "high bar"; the bar would be placed squarely in the center of his knees, and he'd be so prosecuted that he couldn't get anything done.

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika Obama, fearful of prosecution when he was finally about to assassinate a US citizen, had the OLC preemptively do a lengthy legal analysis that concluded a combination of the public action defense, the GWB/war on terror’s authorization of military force, and the President’s military prerogatives enabled it. https://www.aclu.org/sites/default/files/assets/2014-06-23_barron-memorandum.pdf

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika there’s a norm against prosecuting Presidents while in office that held through the Trump years. afterwards, as Mitch McConnell insisted when arguing against impeachment, was the time for accountability. until after July 1 it wasn’t. there is now no time for Presidential accountability.

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika And how would that act be distinguished from assassinating any other American citizen for political reasons?

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika i guess read the memo. (i did, but years ago, i can’t recapitulate it for you now.) i thought the whole thing, the whole drone assassination program, let alone of a US citizen, was horrific. https://www.interfluidity.com/v2/2255.html

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika And you believe those norms are still held today?

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika yes.

@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika Interesting.

@nicholas @interfluidity @AltonDooley @volkris @Hyolobrika @realcaseyrollins@social.teci.world All that said, were #Obama to do the same under this new #SCOTUS ruling, would he be immune from prosecution?

@nicholas yes. by “the law was fine with it” what i meant is that even absent formal immunity, the bar to prosecution has always been extraordinarily high and a “public action” affirmative defense at the ready, so that Presidents, as Kissinger quipped, “do immediately” what is illegal but can be justified on public grounds, and have never been prosecuted for it. the only real risk they have faced when they use official power for reasons not colorably intended to advance a public interest.