Trump v. United States Recognizes That Prosecuting The President Poses More Risks Than Suing The President

Defenders of the Mueller investigation routinely argued that the threat of civil enforcement was worse than a federal prosecution.

Nixon v. Fitzgerald established broad presidential immunity for civil lawsuits. Clinton v. Jones permitted the sitting President to be sued for conduct that occurred before his time in office. But neither case addressed presidential immunity from a criminal prosecution.

During the Mueller investigation, I wrote a series of articles contending that a federal criminal prosecution posed a far greater risk to the presidency than a civil lawsuit. Mueller's defenders disagreed. They contended that since anyone could file a civil lawsuit, while only a responsible federal prosecutor could bring an indictment, the former posed a greater risk. I never found this argument persuasive. Now, Trump v. United States squarely rejected this distinction.

Chief Justice Roberts stated the issue plainly:

Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession, as in Burr and Nixon. The danger is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the "bold and unhesitating action" required of an independent Executive. Fitzgerald. Although the President might be exposed to fewer criminal prosecutions than the range of civil damages suits that might be brought by various plaintiffs, the threat of trial, judgment, and imprisonment is a far greater deterrent. Potential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.

Robert is absolutely correct (not a sentence I write often).

In dissent, Justice Sotomayor articulated the alternate view. First, she wrote that the "threat of criminal liability is much smaller." There are countless potential civil litigants, but only one Department of Justice. Sotomayor wrote, "The majority's bare assertion that the burden of exposure to federal criminal prosecution is more limiting to a President than the burden of exposure to civil suits does not make it true, and it is not persuasive." I'm not so sure. Compare the impact of Jack Smith and Robert Mueller to the impact of Paula Jones and E. Jean Carroll. Not even in the same ballpark.

Second, Justice Sotomayor pointed to "robust procedural safeguards" that federal criminal prosecution have that civil suits lack. She cites the "scrupulous and impartial" standards that DOJ lawyers follow, in addition to procedural protections under the Bill of Rights. I'm not sure this argument sticks. The procedural protections exist because the potential punishment is far more severe. At most, a civil lawsuit can yield a damages award, and maybe some injunctions. Civil suits can also be quietly settled. By contrast, a criminal prosecution is public, and can result in incarceration and forfeiture of various rights.

Third, Sotomayor acknowledges that "a private civil action may be brought based on little more than "'intense feelings.'" By contrast, "a federal criminal prosecution is made of firmer stuff." Historically, she writes, prosecutors have exercised "restraint" to not prosecute a former President. But the "grave" allegations against Trump were different.

A recurring theme in the Trump dissent is an abiding faith in the fairness of a federal prosecutions against the President--especially by a special counsel. Indeed, Justice Sotomayor insisted that the special prosecutor acts on behalf of the United States:

The public's interest in prosecution is transparent: a federal prosecutor herself acts on behalf of the United States

That is true only in the most technical sense. In reality, Jack Smith works for Jack Smith, and there is no evidence that Attorney General Garland actually exercises any control over this prosecutor. During oral argument in Florida, counsel for the special counsel refused to address whether the Attorney General was even consulted before Trump was indicted. Moreover, Reports suggest that Smith would continue prosecuting Trump even up till inauguration day--something no accountable prosecutor would even countenance.

Color me (and the Chief Justice) skeptical about Jack Smith faithfully representing the United States. As Justice Scalia explained in his Morrison dissent, a prosecutor focused on one person, and one person alone, will stop at nothing to get his man. These dynamics are all the more troubling when the guy is the former, and (likely) future President.

Roberts responds:

The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President. Although such tools may suffice to protect the constitutional rights of individual criminal defendants, the interests that underlie Presidential immunity seek to protect not the President himself, but the institution of the Presidency.

Roberts used a nearly identical line in Trump v. Hawaii, though he did not dare cite it:

In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.

This issue also recurred during oral argument in Trump v. Mazars. In that case, Justice Gorsuch "we have to write a rule that's presumptively of some value going forward and isn't just about one President but it's about the presidency." Gorsuch made a similar comment in the immunity argument, noting they were writing a "rule for the ages." Gorsuch was mocked for this statement, but he is exactly right. With a separation of powers cases, it's not just about Trump.

Throughout the four years of the Trump presidency, I repeated this refrain over and over again: whatever rules are adopted for this President would invariably weaken the presidency in the future.

I suspect lurking in Roberts's mind is a reasonable concern that a Trump administration will try to indict President Biden on a whole range of offenses. This passage speaks to that risk directly:

Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine.

As much as Roberts was trying to insulate Trump from criminal prosecution, he was also throwing a life-preserve to former-President Biden, and all future former-presidents.

Still, even so, the Trump DOJ may seek to indict Biden for his retention of classified documents. This conduct by the former Vice President occurred before he was President. Special Counsel Robert Hur's argument that Biden is an "elderly man with a poor memory" will be belied with Biden's own insistence that he has the mental acuity to be the leader of the free world. I'm not sure what the statute of limitations is on that offense, but it would probably be tolled while Biden is in office. And given that Biden would no longer pose any sort of political threat to Trump, there is no conflict of interest, so I don't even think a special counsel would be called for. I suppose Biden could pardon himself on the way out the door.

Comments

[IAdmitIAmCrazy]

I find Josh’s position on presidential immunity curious for a libertarian venue. I am aware that so far this is not a comment on the validity of his argument.
However, criticizing loosening the grip of the law on the presidency already far too “imperial” strikes me as odd. Libertarians rightfully are deeply suspicious of government power; lessening moderating measures on the incarnation of executive power, the presidency, seems counter-intuitive. Josh’s quibbling about the competing power of another branch of government, the (special) prosecutor, seems to disregard the whole forest for a single tree.
The law can be a shackle on the individual citizen’s autonomy. Yet, the application of the law curtailing the power of the supreme government executive agent, the president, should be welcomed because they curtail governmental power. To declare vast swaths of presidential actions as immune from scrutiny by the courts seems to me anything but libertarian.

[David Nieporent]

Your error is in associating Blackman with libertarianism in any way.

[Riva]

“Shackles” on the chief executive inconsistent with the structure of the constitution should never be welcomed. The principles underlying this opinion have been respected in practice since the founding of this republic.

And suspicions about government power? Like an out of control “special prosecutor” conducting his political prosecutions? This offensive lawfare is new and dangerous but apparently you have no concerns over that.

[David Nieporent]

“Shackles” on the chief executive inconsistent with the structure of the constitution should never be welcomed.

The constitution gives the president almost no powers. The few exceptions are making treaties, signing/vetoing bills, making nominations, giving orders to the military, issuing pardons. Other than those sorts of things, his only power, under the structure of the constitution, is to execute the laws passed by Congress. If he violates those laws, then under the structure of the constitution he should be prosecutable.

What's particularly bizarre about your argument is that you are shackling the actual president's power to prosecute criminals to protect a former president who under the actual text of the constitution has zero power of any sort and is no different than a former opera singer.

[Riva]

Actually, Dave, since you must have skipped your civics class, allow me to inform you that all executive power is vested in the president. That would be Art. II, sec. 1, cl. 1. The constitution gives the president almost no power? Uh no. How did the S.Ct. say it? The president’s duties are of “unrivaled gravity and breadth.”

Not sure I understand your final gibberish. You do understand that the conduct at issue in Smith’s farce occurred when President Trump was in office so the issues involve his official acts as president?

[Mark Bahner]

"Not sure I understand your final gibberish. You do understand that the conduct at issue in Smith’s farce occurred when President Trump was in office so the issues involve his official acts as president?"

It is an official act of a president to develop fraudulent sets of presidential electors to overthrow an election the president lost?

[Riva]

Uh, no one did any such thing because there was no "fraudulent" set of electors. There was a set of alternate electors. Something even JFK employed.

[Mark Bahner]

"Uh, no one did any such thing because there was no “fraudulent” set of electors."

I should have written "'allegedly fraudulent' set of electors."

"Something even JFK employed."

Are you not aware of the substantial differences between the 1960 case of JFK in Hawaii and the 2020 case of Trump in Arizona, Nevada, Michigan, Wisconsin and Georgia?

https://www.politico.com/news/2022/02/07/1960-electoral-college-certificates-false-trump-electors-00006186

[Riva]

A Politico article? Why didn't you say so in the first place? Who could ever argue with a clear and unbiased Politico article.

[Mark Bahner]

Do you dispute any of the facts of the Politico article?

1) Do you dispute that the difference in Hawaii was a mere 140 votes?

2) Do you dispute that the re-count in Hawaii was still proceeding on December 19th, when certified results were required by law to be submitted to the Electoral College?

3) Do you dispute that it was finally determined that *Kennedy* won the vote in Hawaii?

Do you know that "argumentum ad-hominem" is well known to be a logical fallacy? If so, why do you use it so often? Is it because that's the best you've got?

https://www.scribbr.com/fallacies/ad-hominem-fallacy/

[Riva]

I dispute that any of those assertions invalidate the use of the concept in the 2020 election. They are merely another leftist argument from a leftist rag that probably parroted the Russian collusion fraud, the Charlottesville lie, and the laptop lie, among others. So here's are some a new word for you: tendentious, Or maybe misinformation, misrepresentation, prevarication, propaganda, or just f'ing lie?

[Mark Bahner]

"I dispute that any of those assertions invalidate the use of the concept in the 2020 election. They are merely another leftist argument from a leftist rag that probably parroted the Russian collusion fraud,..."

In other words, facts don't matter to you, and you'll instead go all in on the argumentum ad hominem fallacy.

Whereas if facts mattered to you, you might notice that, for example, Hawaii in 1960 is different from Georgia in 2020 because:

1) Hawaii was different by only 140 votes on the original count, whereas Georgia was different by more than 11,000.

2) Hawaii was still in recount on the day that elector slates were required to be sent to the federal government, whereas Georgia had long ago done a completely recount, showing without question that Biden had 11,000+ more votes than Trump.

3) Hawaii's recount showed that Kennedy *did* win Hawaii, whereas Georgia's recount showed Trump unquestionably lost Georgia.

Etc. etc.

[Riva]

No, not facts, the opinion of Politico. And the opinion of Politico doesn’t matter to me.

[David Nieporent]

The constitution gives the president almost no power? Uh no. How did the S.Ct. say it? The president’s duties are of “unrivaled gravity and breadth.”

Well, you’re misquoting me — I said powers, not power. The president’s duties may be grave, but they are few and of almost no breadth. As the rest of the paragraph you’re quoting from SCOTUS makes clear. It gives a list pretty much like the one I stated above that you failed to quote.

You do understand that the conduct at issue in Smith’s farce occurred when President Trump was in office so the issues involve his official acts as president?

And now he’s not, so none of those are important anymore. The former president is being prosecuted, and he has no powers at all so a prosecution by definition cannot interfere with them.

Joe Biden is the current president, and therefore all those “unrivaled” powers are vested in him; there is no basis for “shackling” his power to prosecute criminals, which is what SCOTUS has done.

[Riva]

That President Trump’s term in office concluded is as irrelevant in this case as it was that Nixon was no longer president in Nixon v Fitzgerald. You’re only beclowning yourself with this nonsense. The relevant circumstance is that the acts in question occurred during President Trump’s term in office. After his term ended, his official acts as president do not transform magically into unofficial acts.

[neurodoc]

Damn, I'm mightly disappointed. I would have hoped that Josh would have come out with it and said that he was fully in favor of granting POTUS immunity against criminal prosecution should they decide to dispatch Seal Team 6 to assassinate a political enemy. And then my own secret desire would be that President Joseph Robinette Biden would hurry up and use that newly granted permission to eliminate a certain political enemy of his before said enemy is empowered to do the rest of us incalculable harm. (Just kidding, of course.)

[Riva]

The Seal Team Six hypothetical is asinine beyond belief. Is such an illegal order even an official act? But aside from that, what does this scenario envision? An out of control chief executive, murdering his opponents, and Congress just sits back and rubber stamps it? That’s called a coup. And in that new American dictatorship, there wouldn’t be a damn thing a federal prosecutor could do regardless of presidential immunity. Ask Putin, or Xi; or, if they weren’t rotting in hell, Stalin and Castro. The real danger is political prosecutions targeting the administration’s chief opponent, as illustrated by the present case.

[Mark Bahner]

"The real danger is political prosecutions targeting the administration’s chief opponent, as illustrated by the present case."

Do you think Donald Trump's actions to overturn the 2020 presidential election results were part of his duties as president?

[Riva]

Nothing illegal about challenging an election results. Democrats do it every time a republican wins.

[Mark Bahner]

"Nothing illegal about challenging an election results."

Yes, there's nothing illegal about going to the courts to challenge election results.

But do you think there's nothing illegal about attempting to create fraudulent sets of presidential electors?

[Riva]

Not "fraudulent," alternate. Again, taken from democrats. I think Kennedy had alternate electors. Maybe others.

[egh3]

Kennedy had on going legal challenges at the time. Since Trump’s legal challenges had fizzled out by December 14th, the alleged claim is they knowingly manufactured false fraud claims to keep those challenges going.

[Riva]

That's a distinction without a difference. The challenge to the election was ongoing in President Trump's case.

[egh3]

That is verifiably false.

[Riva]

You may be mistakenly conditioning the use of alternate electors to an ongoing legal proceeding before a court. No such limitation exists. The challenge was proceeding to the House.

Or you could just be an ignorant jerk? Maybe both?

[David Nieporent]

The challenge was proceeding to the House.

Congress, not the House, and Congress’s role is ministerial — counting the votes. Not hearing “challenges.”

[Riva]

House democrats objected to election results in 2001, 2005, and 2017. You better call your sleazy democrat representative and advise he/she/it that they shouldn’t object to President Trump’s reelection because their only role is to count.

[David Nieporent]

You better call your sleazy democrat representative and advise he/she/it that they shouldn’t object to President Trump’s reelection because their only role is to count.

1) The term you're looking for is "Democratic," not "Democrat," you semiliterate halfwit bot. Democrat is a noun; Democratic is an adjective.
2) My sleazy Representative is a Republican, not a Democrat.
3) I think Dems who did those things were wrong. But they were being performative, not trying to actually change the outcome of the election; they knew they had no chance at doing that. This was just a way to say, "Hey, look at me, I'm mad!"

[Riva]

The "Democratic" party? Ok, if you say so.

[Mark Bahner]

"Not 'fraudulent,' alternate."

Yes, I should have wrote "allegedly fraudulent." A criminal trial could determine whether a jury of twelve would unanimously agree that they were truly fraudulent.

[Riva]

Well you seem committed to the repulsive republic ending lawfare so what can I say? Go F yourself. I have no more patience with repulsive thugs like you.

[Mark Bahner]

Heh, heh, heh!

Yeah, if you can’t win an argument, leave with expletives and insults.

[David Nieporent]

Is such an illegal order even an official act?

If things aren't official acts by dint of being illegal, then of course immunity is doing no work at all.

The real danger is political prosecutions targeting the administration’s chief opponent, as illustrated by the present case.

Not only is that not a "danger," but it's incredibly unlikely to arise again, because this pretend immunity applies only to former presidents, and former presidents are the "administration's chief opponent" maybe two or three times in the last 200 years.

[Riva]

So do you believe assassinations of political opponents is within the conclusive and preclusive constitutional authority of the president affording absolute immunity? Or do you think the conduct is presumptively immune and that, if coming before the Court, they’ll give it the thumbs up? If you believe either of this things, seek help, for your own good.

[David Nieporent]

I think the president has no immunity at all, so obviously I don’t think assassinations are within his power. I think under this ruling, he is at the very least “presumptively” immune from prosecution for ordering such an act, and — despite your whining about it — that was Trump’s position as well. (Well, not “presumptively”; totally. Unless Trump were impeached for it first.)

[Riva]

I really don’t quite understand your infatuation with this assassination scenario. Assuming you’re right and the murder of a political rival is an official act (just to write this lowers IQ points), such a president would absolutely be subject to impeachment and once convicted and removed from office, then tried. And if Congress simply rubber stamped the murder, kinda sounds like a coup so good luck to the federal prosecutor going after the new American dictator. Certainly the Jack Smith thug variety is far more inclined to goose step to the new furher, like the present one does now.

[Martinned2]

Or, and I know this is a crazy idea, we could just agree that the President is subject to the law just like everyone else, and leave it to Congress to sort out whether specific laws should apply to things like sending drone strikes to kill people in rural Yemen.

[Kleppe]

Congress isn't "subject to the law just like everyone else" regarding their core functions. Neither are prosecutors. Neither are judges.

[Riva]

He is subject to the law. The Constitution is the highest law.

[David Nieporent]

And the constitution says not one word, anywhere, at all, about presidential immunity. The majority fails to explain why that isn't immediately dispositive.

[Riva]

The constitutional structure says a lot about it. Separation of powers, you might want to look it up. Historical practice since the founding of this republic is pretty dispositive too.

[David Nieporent]

The “constitutional structure” says nothing about it, and repeating the empty phrase “separation of powers,” which also says nothing about it, shows nothing except that you don’t know what you’re talking about.

Nor is this imaginary “historical practice” anything other than, well, imaginary.

[Riva]

Imaginary history like no such criminal prosecutions until the corrupt reptile's regime assumed power?

And separation of powers has everything to do with the constitutional structure. The constitutional separation of powers defines our system. You really have no clue, do you?

[benji]

What's the separation of powers involved in an executive branch investigating and prosecuting a former member of the executive branch?

[Riva]

It’s the criminal process that intrudes on the prerogatives of the executive here. If you can’t grasp this, stop making comments.

[Mark Bahner]

"The danger is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the 'bold and unhesitating action' required of an independent Executive."

And this "bold and unhesitating action" would be something like:

1) Killing a 16-year-old U.S. citizen in a drone strike, half a world away from the United States?

2) Sending cruise missiles to blow up a pharmaceutical factory half a world away, to appear "presidential," and take public attention away from an affair with an intern?

3) Encouraging supporters to illegally overturn the results of a presidential election?

"Bold and unhesitating action" like that?

[Don Nico]

Yes, Mark, history has showed us that it would be. But at least now BHO is off-the-hook.

[Mark Bahner]

"Yes, Mark, history has showed us that it would be."

"History has showed us" that it was necessary for the presidents in all three of those situation to do the things they did?

1) What did the U.S. gain by killing a 16-year-old in Yemen?

2) What did the U.S. gain by blowing up a pharmaceutical plant in Khartoum?

3) What did the U.S. gain by Donald Trump working with supporters to try to illegally overturn the results of the 2020 presidential election?

The idea was that "bold and unhesitating action" was "required of an independent Executive". That implies that the people of the United States get some sort of benefit from those actions. I don't see the benefit to the people of the United States in any of those cases.

[David Nieporent]

Yes… but as I keep saying, no president is going to prosecute a former president for things like #1 or #2, because those are the sorts of thing that every president does, and they wouldn't want to set a precedent.

[Roger S]

Until now, it was thought that no one would be prosecuted for the things that Trump has been prosecuted for. These runaway political prosecutions required Scotus to act.

I could imagine an anti-war President wanting to prosecute a previous President for starting a war.

[Mark Bahner]

"Until now, it was thought that no one would be prosecuted for the things that Trump has been prosecuted for."

Until now, it was thought that no one would be prosecuted for trying to illegally overturn the results of a presidential election?

Until now, it was thought that no former president would ever be prosecuted for taking hundreds of documents with classification markings to his golf resort home after he left office, and then moving the documents around and attempting to destroy evidence of that movement, in the face of subpoenas to return those documents?

[NvEric]

Get to the truth. Your statements are in error. You are repeating misinformation.

[Riva]

Dave can't seem to accept this ruling yet. He needs time. And therapy.

And he's so upset that he is essentially conceding that creepy Biden is orchestrating these "prosecutions." Ok, I'll agree with him there.

[Longtobefree]

"She cites the "scrupulous and impartial" standards that DOJ lawyers follow, in addition to procedural protections under the Bill of Rights."

Does the health care part of her benefits package include mental health care?

[JoeFromtheBronx]

"Compare the impact of Jack Smith and Robert Mueller to the impact of Paula Jones and E. Jean Carroll."

Trump had civil judgments against him.

So far, he has had no criminal judgments, though his company and various underlinings have.

"Color me (and the Chief Justice) skeptical about Jack Smith faithfully representing the United States."

Color me skeptical about Roberts and the Court majority faithfully representing the law of the land. The text of the Constitution notes that people removed by impeachment are still liable for criminal punishment. We are a country of law, not men. I thought.

Why is one person so much above the law? Yes, criminal law means more than civil punishments. So, we have many more safeguards in place.

Reference is made sometimes to President Obama authorizing drone strikes. These drone strikes were carefully justified by legal findings and there was a multi-person group involved in selecting who could be targeted.

Why? Obama respected there were legal limits. He could not do anything as president akin to John Yoo justifying torture.

People have strongly rejected the authority to use drone strikes, especially the few times American citizens were involved. Some rhetoric seems to suggest killing citizens during the American Civil War was wrong. There was an authorization of military force.

But, that is not the basic point. It's that the underlining understanding was that President Obama was not above the law. He could be impeached AND criminally prosecuted if he committed murder. Official act or not.

[Mark Bahner]

"Reference is made sometimes to President Obama authorizing drone strikes. These drone strikes were carefully justified by legal findings and there was a multi-person group involved in selecting who could be targeted."

Is there something in the U.S. Constitution that authorizes a "multi-person group involved in selecting" which U.S. citizens can be killed without trial by the president?

[JoeFromtheBronx]

Yes.

Congress authorizes military force. The President is the commander-in-chief. Military force can include lethal force. It can include lethal force against American citizens.

Abraham Lincoln with his advisors could determine that lethal force was warranted during the Civil War.

A trial wasn't necessary first.

Lethal force without a trial is allowed in multiple cases. A federal prison warden, perhaps with guidance from the relevant agency head with the involvement of the president, could use lethal force -- including against citizens, during a prison riot.

An attack on the White House occurs. The president can authorize, with advisors involved determining necessity, lethal force to stop it. No trial is necessary to do so first.

Multiple other examples can be imagined. An ordinary person can use lethal force in certain instances. The president can too.

[Don Nico]

And that excuses murdering a 16-yo citizen? I doubt it, but obviously no persons in authority were going to criticize BHO's judgement. Better that SCOTUS rules that his act cannot be prosecuted.

[JoeFromtheBronx]

You have to show your work where there is "murder" of a citizen. Sixteen-year-olds died during the Civil War. American citizens.

It also is not by definition a justification on policy grounds. The judgment might have been wrong.

But, during armed conflicts, innocents die. Sometimes, people in authority very well call it out. It is not simple "murder" though.

[Mark Bahner]

"Abraham Lincoln with his advisors could determine that lethal force was warranted during the Civil War."

Are we involved in some sort of civil war of which I'm not aware?

Absent some sort of civil war, what in the Constitution do you think authorizes the President of the United States to execute 16-year-old U.S. citizens without trial, as long as he has a "multi-person group involved in selecting" those 16-year-old U.S. citizens to be executed without trial?

[David Nieporent]

Presumably Obama would cite the AUMF.

[JoeFromtheBronx]

You asked:

“Is there something in the U.S. Constitution that authorizes a “multi-person group involved in selecting” which U.S. citizens can be killed without trial by the president?”

I provided some examples. As David Nieporent notes, there was also the AUMF.* A few citizens were killed during wars too. An American citizen who joined the Japanese military forces could be killed without a trial happening.

BTW, where did he “execute” a sixteen-year-old? The one person I’m aware of was accidentally killed. A senior operative in al-Qaeda was targeted. His sixteen-year-old son (apparently not known by the U.S.) was nearby when it happened.

If a visiting American wife of a German officer in WWII was killed when a military base was attacked, would it be an “execution” too?

===

* The other main defense is some appeal to national self-defense such as when someone is leading attacks from isolated areas.

That can be more tricky but the AUMF and related authorizations of force is an easier case.

[Mark Bahner]

"You asked: 'Is there something in the U.S. Constitution that authorizes a “multi-person group involved in selecting” which U.S. citizens can be killed without trial by the president?'”

My specific question was, "Absent some sort of civil war, what in the Constitution do you think authorizes the President of the United States to execute 16-year-old U.S. citizens without trial, as long as he has a “multi-person group involved in selecting” those 16-year-old U.S. citizens to be executed without trial?"

I don't think you've answered that specific question.

The Fifth Amendment states:

"...; nor shall any person... be deprived of life, liberty, or property, without due process of law;..."

What in the Constitution, absent a state of civil war, do you think renders that Fifth Amendment right void?

[Mark Bahner]

"BTW, where did he 'execute' a sixteen-year-old? The one person I’m aware of was accidentally killed."

Barack Obama ordered a drone strike that executed 16-year-old Abdulrahman Al-Aulaqi (also spelled Al-Awlaki). The strike was conducted at a restaurant where the 16-year-old was eating with a cousin.

Eric Holder later claimed that the 16-year-old was not "directly targeted", but as far as I know, no one in the Obama administration ever stated who *was* the target, if the target was not the 16-year-old:

https://www.motherjones.com/kevin-drum/2015/04/abdulrahman-al-awlaki-obama-drone/

[NvEric]

This term is unConstitutional - AUMF, as is the War Powers Act despite temporary opinions to the contrary. Many would bring the case to SCOTUS, but they lack standing. Only the DEAD have standing, except they remain speechless.

The President is the Commander in Chief when called into actual service. Constitutionally, we are not in any war, thus AUMF is illegal as is the War Powers Act. This dictatorship lives by unConstitutional means and is supported by traitors to the Constitution. If, immediate need is demanded for nuclear counter-strike, put it into the Constitution. If something like the AUMF is needed, put it into the Constitution also. Balls out all the time, or put on a dress and heels !

Honest forthrightness or whimper away.

[Riva]

The Jacobin nuts really don’t think these things through, until they find themselves being lead to the block.

[Dilan Esper]

You have to start with the constitutional text. It provides for prosecutions of presidents, in the impeachment clause. And the structure is that except with a few exclusive executive powers like vetoes and pardons, the rulemaking power is in Congress' hands and the executive has to follow the rules. (In that regard, the Trump case is inconsistent with the constant preaching at the executive to obey Congress that we see in admin law cases from this Court.)

A simple example: the war power. People think of "Commander in Chief" as the apex of presidential power, but Article I makes clear that Congress sets the rules for the armed forces. So Congress can bind every commander in the military except one? That makes zero sense. It's a loophole you could drive a humvee through.

Or take the treaty power. Congress can pass laws to enforce our obligations, which is necessary to ensure our co-signatories that we are bound by the treaties, but the President can just disobey Congress and do whatever he wants?

Plus, you have the take care clause, which literally says the President has to follow the law.

So the ruling is just wrong. But it's also pernicious and partisan, in at least two ways:

1. We know SCOTUS is going to eventually pass on whether the specifics of the indictment concern immune conduct, so why not do that now? Why ensure another round of District Court litigation on a pure issue of law?

2. Why such a vague standard? What the hell does it mean for a prosecution of an official act to threaten or not threaten executive power? It seems to me this is set up so SCOTUS can always come up with a reason to say a prosecution does or doesn't pass muster, based on the party affiliation of the defendant.

[Riva]

Was there something in this opinion that eliminated the Impeachment clause? I must have missed that. But you might want to give some thought to the separation of powers inherent in the structure of the constitution and the vesting of all executive power in the president.

And why not barrel ass ahead to accommodate the politics of the special prosecutor? The question answers itself.

[Dilan Esper]

The impeachment clause says you can prosecute the President, so, yes.

And it isn't "barrell ass ahead" to ask SCOTUS to actually decide the case it took.

[Riva]

The S.Ct. did responsibly render an opinion. I thought that was obvious from the left’s meltdown? Now if you want an example of courts irresponsible rushing matters for apparent partisan reasons to get the matter tried before the Nov. election, look at the lower DC courts.

And about that impeachment clause, it says you can prosecute after impeachment and conviction. Are you saying that isn’t possible now? Because if you are, I’m afraid you’re mistaken. That seems generally to be a common theme among the left.

[Z Crazy]

Neither Dubya or Obama were EVER gonna face prosecution for their war crimes, no matter what the Supreme Court said.

[David Nieporent]

The impeachment clause has nothing to do with a former president.

the vesting of all executive power in the president

The power to prosecute is an executive power, vested in the president, who is Joe Biden. Glad you now agree that the Supreme Court had no right to usurp or foreclose that power under the "structure of the constitution."

[Riva]

The executive power was vested in President Trump during the period at issue in that thug Smith’s repulsive lawfare. That is the relevant fact.
And “The impeachment clause has nothing to do with a former president” ? Uh so what, how is that relevant?

[David Nieporent]

The executive power was vested in President Trump during the period at issue in that thug Smith’s repulsive lawfare.

The “period at issue” is now. The question is what executive powers Biden has now, and what immunity Trump had now. Not what Trump may have had four years ago.

Uh so what, how is that relevant?

Dunno; you’re the one who brought up impeachment. Since it’s off the table now since Trump isn’t president, I don’t know why. M

[Dilan Esper]

Right. The DOJ's advice that you can't prosecute a sitting President is generally accepted even if not everyone likes it. It's not at issue here. This is about immunity after leaving office.

[Riva]

The official acts of President Trump did not magically transform into non-official acts when he left office. You really have no idea what you’re talking about, yet continue to post comments. Someone needs to step in take away your online privileges. I blame your parents.

[Jason Cavanaugh]

Three word-vomit posts by Blackman on the subject, and not one of them addresses the substance of the decision or its utter lack of textual support whatsoever.

The "Jurist of the Year" is nothing more than a receptacle with his eyes closed and mouth open, waiting for the tap on his shoulder.

[Mark Bahner]

“Three word-vomit posts by Blackman on the subject, and not one of them addresses the substance of the decision or its utter lack of textual support whatsoever.”

Yes, it would be interesting to read Josh Blackman’s response to Ilya Somin’s post, “Thoughts on the Trump Immunity Decision.”

<a href="https://reason.com/volokh/2024/07/03/thoughts-on-the-trump-immunity-decision/

[Z Crazy]

I did see a lot of caterwauling over this ruling.

What I do know is this.

There’s absolutely NO chance Dubya or Obama would be tried for war crimes, REGARDLESS of how this case was decided.

Why should anyone care if Trump whined about a stolen election, or even did forgery or perjury?

It’s like having your panties in a knot over the “misogyny” of Alec Baldwin yelling at his daughter, while giving Brian Mitchell, Scott Petersen, and Richard Speck Presidential Medals of Freedom!

[Alpheus W Drinkwater]

You've posted this multiple times now, and I don't really get your point as regards the Trump v USA decision. Since neither Bush nor Obama were prosecuted for war crimes, therefore no President should ever be prosecuted? Under this ruling, the actions taken by Bush and Obama would surely be official acts, right? Is this just an oblique criticism of the ruling?

Trump's actions either broke the law or they didn't. The fact that in your opinion the infractions weren't as serious as those of Bush and Obama doesn't really matter to that question. Or to the question of whether or not they were official presidential acts.

[Roger S]

Trump's actions did not violate the law, but vindictive opposing politicians are prosecuting him anyway.

[Mark Bahner]

"Trump’s actions did not violate the law, but vindictive opposing politicians are prosecuting him anyway."

Let's skip this particular case and go to the Mar a Lago documents case. Do you also think Trump's actions in that case did not violate the law?

[Roger S]

All Trump did was to retain some printouts, as he is allowed under the presidential records act.

[Mark Bahner]

“All Trump did was to retain some printouts, as he is allowed under the presidential records act.”

No, a president’s authority to possess documents with classification markings ends the second he leaves the presidency.

People may possess documents with classification markings only on a “need to know” basis. A former president has absolutely no “need to know”, therefore he or she may not possess any documents with classification markings on them.

Further, he is also charged with obstruction of justice in hiding the documents with classification markings from his own lawyers, so they would file false responses stating no subpoenaed documents were still in Donald Trump’s possession. He his also charged with obstruction of justice by attempting to destroy the video records of his hiding the subpoenaed documents.

Or do you think the Presidential Records Act also allows a former president to deliberately disobey subpoenas to return documents with classification markings their rightful owner (which is the U.S. government)?

[Roger S]

You keep saying "classification markings", but such markings have nothing to do with the indictment.

[Mark Bahner]

"You keep saying 'classification markings', but such markings have nothing to do with the indictment."

You simply don't know anything about the Florida documents indictment. The classification markings have *everything* to do with the Mar a Lago documents indictment.

https://www.justice.gov/storage/US-v-Trump-Nauta-De-Oliveira-23-80101.pdf

The subpoena with which Donald Trump refused to comply was for all documents with classification markings. From page 3 of the indictment:

"The grand jury issued a subpoena requiring TRUMP to tum over all documents with classification markings."

[Michael Ejercito]

I have a few thoughts on this.

Core presidential powers (signing, vetoing, pardoning, commutating, nominating, firing) are absolutely outside the control of Congress.

As such, arguing that a President's pardon is obstruction of justice, or signing legislation later found unconstitutional is conspiracy against rights, is foreclosed by Trump v. United States. And this is right.

But what about other official acts, which are presumptively covered by immunity. What sort of test should courts use to determine if the alleged act overcomes this presumption?

I believe the proper test is the one enumerated in Harlow v. Fitzgerald, 457 U.S. 800 (1982). In Harlow, immunity applies unless the alleged conduct violates “clearly established” law id. at 818. The lower courts did not decide what kind of test to use, and it was proper for SCOTUS to vacate and remand so the lower courts will have a chance to decide what test is appropriate.

As such, to quote an example posted by Z Crazy (verbatim, including misspellings) , an argument that the President ordering "the Army to round up Gazan girls and confine them in rape camps like the ones that existed in the Yugoslave Civil War" violates the law of war would pass the Harlow test, because setting up rape camps does violate clearly established laws of war.

However, an argument that arming an allied state makes the President complicit in any war crimes committed by that allied state is in no way clearly established, and fails the Harlow test. And this is important. I am sure there is a Hamasshole fanboi serving as a prosecutor somewhere who would charge FJB for complicity in genocide.

Ordering a law enforcement investigation does not violate clearly established law, while ordering perjury or forgery most certainly does.

[David Nieporent]

Core presidential powers (signing, vetoing, pardoning, commutating, nominating, firing) are absolutely outside the control of Congress.

I agree with this, but I also don't think it's an immunity. A law that criminalized such conduct would be unconstitutional, either facially or as applied depending on how it's worded, but that's not the same thing.

But in any case, everything else beyond those powers expressly granted solely to the president, there's no possible justification for any form of immunity. Nor is there any basis for saying that any of these things — including the core powers — can't be used as evidence in a prosecution of the president.
​
​

I am sure there is a Hamasshole fanboi serving as a prosecutor somewhere who would charge FJB for complicity in genocide.

Any one of several hundred million people can make the final decision to sue a former president. Only one person in the United States can make the final decision to prosecute a former president. So there are no worries about a "prosecutor somewhere."

[Roger S]

Besides Biden making that decision, prosecutors in NY and Georgia also decided to prosecute Trump. Also we do not know that Biden is competent to make any decisions, so his handlers are calling the shots.

[David Nieporent]

Prosecutors in NY decided to prosecute him for falsifying business records. Pretty sure that accurately recording reimbursements to one's attorney for hush money payments to a porn star is not an official act of a president and therefore is irrelevant to this discussion. Prosecutors in Georgia decided to prosecute him for conspiring to overturn a state election. Again, not an official act of a president and thus irrelevant to this discussion.

[Roger S]

The Georgia case is all about a federal election. Yes, they were state officials counting votes for state electors, but they were electors for the US President.

In the NY case, they were personal records, not business, and they accurately described legal expenses. Trump was President at the time. The testimony against him was from Hope Hicks and the Access Hollywood tape. The Scotus opinion seems to imply that the Hicks testimony was improper. The evidence about Access Hollywood and condoms was obviously improper.

[Mark Bahner]

"Ordering a law enforcement investigation does not violate clearly established law, while ordering perjury or forgery most certainly does."

How about ordering the military to execute a 16-year-old U.S. citizen without trial?

How about ordering the military to blow up a pharmaceutical factory in a country with which we are not at war?

[Roger S]

Our courts are incapable of resolving issues like those.

[Mark Bahner]

"Our courts are incapable of resolving issues like those."

Why do you think that?

[JoeFromtheBronx]

Who ordered the military to execute a 16-year-old U.S. citizen?

Can POTUS, especially after Congress authorized military force, order military force that in certain cases might harm or even kill American citizens? (Yes, even children, such as American citizens who were residing in Japan when the bombs were dropped.)

Yes. BTW, to be clear on another thing, sales of pardons is a form of bribery. Pardons can be abused in other ways. Signing legislation being a criminal act is a reach. I suppose some scenario can be found, including again doing it for money.

“Core presidential functions” can be carried out in such a way that can be prosecuted.

Likewise, the removal of presidential officers is a core function, but you can’t do it via poisoning a Cabinet member.

There is no absolute power over core functions. For instance, the Bill of Rights still applies. Pardoning only Christians can be a problem.

[Mark Bahner]

"Who ordered the military to execute a 16-year-old U.S. citizen?"

Barack Obama, presumably. But maybe an investigation and/or trial would show it was someone under him, and Barack Obama for some bizarre reason had no knowledge that 16-year-old Abdulrahman Al-Aulaqi (also spelled Al-Alwaki) was being targeted for execution in Yemen.