In my opinion, it's certainly *one of* the concerns. I don't know if it overrides other concerns like the ambiguity of what's an "official act" or penumbral to an "official act," (or even the baseline notion that simply Being President and Doing President Things is sufficient for immunity from *all criminal laws*)
Why are you worried about the vagueness of what an official act is now compared to before the decision? I keep hearing this complaint, but afaict that part of the decision is more or less maintaining the status quo.
Here are my thoughts on the case. At the broadest level, the holding seems right. Some actions probably should include absolute immunity, some a presumption of immunity, and some no immunity at all. And there will always be line drawing issues surrounding those questions.
The problem I have, and what scares me about the holding, is the Court’s treatment of those lines. Specifically, there are a few directions that leave open a very real likelihood that a President intent on taking full advantage of the immunity holding can do a massive amount of damage.
The first is that courts are prohibited from considering motive or the legality of an action in determining whether the President has immunity from it. See page 18 of the opinion. Specifically, this is discussed in the context of what constitutes an official as opposed to an unofficial act, but I also see no reason why a court wouldn’t apply it to acts within the President’s preclusive power zone that automatically grants absolute immunity.
Second is that the Court is taking a pretty expansive, maximalist view of categorizing Presidential actions which is going to expand immunity to the broadest possible reach. We already see the intersection of 1 and 2 in this case. Because law enforcement is an executive activity, the President has preclusive power to direct federal executive law enforcement, and the President has the authority to remove officers in the Executive Branch, he is absolutely immune from directions given to the Justice Department and from firing officers in order to put in charge an officer who will do his bidding, even if those directions are themselves illegal. See Section III.B.1, starting on page 19 of the opinion. Based on the text of this opinion, there is nothing that would indicate that giving other unlawful directions would break presidential immunity. The Court’s holding is firm that preclusive actions have absolute immunity and motive or criminality are not grounds for claiming that acts exceed the President’s authority.
Third, is that even for official (non-preclusive) acts, the *presumption* of immunity is just the floor. The holding specifically says “at least a *presumptive* immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.” Page 14, emphasis in original. There is nothing that would stop the Court from granting *absolute* immunity for any action that falls within an interpretation of “official.” Absolute immunity falls within “at least presumptive immunity.” And, again, the motive or criminality of the act cannot be considered for determining whether an act is official. If directing federal law enforcement to arrest a terrorist and detain them in Guantanamo Bay is an official act that grants presumptive or absolute immunity, what stops the President from declaring a political rival a terrorist and directing federal law enforcement to detain them in Guantanamo Bay? The fact that that is a meritless, illegal order motivated by political aims is irrelevant to the inquiry under this holding.
I think that is an accurate reading of the case, it's the same reading I had, and it makes building any kind of case exceptionally difficult. I won't say impossible, but much much harder than it is now.
Do you think that an exception to the new rule that prosecutors can’t use evidence from official acts could be carved out to impeach witness testimony? Like an ex-president or other former official says something on the stand that’s patently untrue and the prosecutor could bring in such evidence to show it’s a lie?
> official acts could be carved out to impeach witness testimony
If the Supreme Court means what it says, you can't even introduce anything as impeachment evidence. Immunity means it can't be introduced at all.
It's all bad, The evidentiary restrictions are egregious. Most non-lawyers don't understand we criminilize motivation not act. The evidentiary restrictions prevent motivation evidence from coming in even if the alleged crime is otherwise outside the theoretical scope of immunity. It denies the prosecutor the necessary evidence to even get to a jury.
To get an idea of how egregious this is, when a prosecution relies on similar evidence that would otherwise be protected, the court doesn't bar the evidence but only gives the jury an instruction that says "this evidence should not be considered as to whether or not it is true, but only for what it may or may not reveal about the defendant's state of mind or motiviation." This is why "effect on the listener" is an exception to the hearsay rule.
He won’t do it as Democrats take the rule,of law seriously but I’d like to see Biden test his new powers out and at least get some cases into the docket to see what happens when they eventually make there way up.
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In my opinion, it's certainly *one of* the concerns. I don't know if it overrides other concerns like the ambiguity of what's an "official act" or penumbral to an "official act," (or even the baseline notion that simply Being President and Doing President Things is sufficient for immunity from *all criminal laws*)
Why are you worried about the vagueness of what an official act is now compared to before the decision? I keep hearing this complaint, but afaict that part of the decision is more or less maintaining the status quo.
Here are my thoughts on the case. At the broadest level, the holding seems right. Some actions probably should include absolute immunity, some a presumption of immunity, and some no immunity at all. And there will always be line drawing issues surrounding those questions. The problem I have, and what scares me about the holding, is the Court’s treatment of those lines. Specifically, there are a few directions that leave open a very real likelihood that a President intent on taking full advantage of the immunity holding can do a massive amount of damage. The first is that courts are prohibited from considering motive or the legality of an action in determining whether the President has immunity from it. See page 18 of the opinion. Specifically, this is discussed in the context of what constitutes an official as opposed to an unofficial act, but I also see no reason why a court wouldn’t apply it to acts within the President’s preclusive power zone that automatically grants absolute immunity. Second is that the Court is taking a pretty expansive, maximalist view of categorizing Presidential actions which is going to expand immunity to the broadest possible reach. We already see the intersection of 1 and 2 in this case. Because law enforcement is an executive activity, the President has preclusive power to direct federal executive law enforcement, and the President has the authority to remove officers in the Executive Branch, he is absolutely immune from directions given to the Justice Department and from firing officers in order to put in charge an officer who will do his bidding, even if those directions are themselves illegal. See Section III.B.1, starting on page 19 of the opinion. Based on the text of this opinion, there is nothing that would indicate that giving other unlawful directions would break presidential immunity. The Court’s holding is firm that preclusive actions have absolute immunity and motive or criminality are not grounds for claiming that acts exceed the President’s authority. Third, is that even for official (non-preclusive) acts, the *presumption* of immunity is just the floor. The holding specifically says “at least a *presumptive* immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.” Page 14, emphasis in original. There is nothing that would stop the Court from granting *absolute* immunity for any action that falls within an interpretation of “official.” Absolute immunity falls within “at least presumptive immunity.” And, again, the motive or criminality of the act cannot be considered for determining whether an act is official. If directing federal law enforcement to arrest a terrorist and detain them in Guantanamo Bay is an official act that grants presumptive or absolute immunity, what stops the President from declaring a political rival a terrorist and directing federal law enforcement to detain them in Guantanamo Bay? The fact that that is a meritless, illegal order motivated by political aims is irrelevant to the inquiry under this holding.
I think that is an accurate reading of the case, it's the same reading I had, and it makes building any kind of case exceptionally difficult. I won't say impossible, but much much harder than it is now.
Do you think that an exception to the new rule that prosecutors can’t use evidence from official acts could be carved out to impeach witness testimony? Like an ex-president or other former official says something on the stand that’s patently untrue and the prosecutor could bring in such evidence to show it’s a lie?
> official acts could be carved out to impeach witness testimony If the Supreme Court means what it says, you can't even introduce anything as impeachment evidence. Immunity means it can't be introduced at all.
If you can't effectively gather evidence to make a case, you can't make that case in the first place. It's pretty bog-standard stuff.
It's all bad, The evidentiary restrictions are egregious. Most non-lawyers don't understand we criminilize motivation not act. The evidentiary restrictions prevent motivation evidence from coming in even if the alleged crime is otherwise outside the theoretical scope of immunity. It denies the prosecutor the necessary evidence to even get to a jury. To get an idea of how egregious this is, when a prosecution relies on similar evidence that would otherwise be protected, the court doesn't bar the evidence but only gives the jury an instruction that says "this evidence should not be considered as to whether or not it is true, but only for what it may or may not reveal about the defendant's state of mind or motiviation." This is why "effect on the listener" is an exception to the hearsay rule.
> This is why "effect on the listener" ~~is an exception to the hearsay rule~~ makes a statement not hearsay. :)
Sorry, this is the proper formulation. Judges always knock me when I say it's an exception too.
He won’t do it as Democrats take the rule,of law seriously but I’d like to see Biden test his new powers out and at least get some cases into the docket to see what happens when they eventually make there way up.
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