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Opinion here:

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

All I've done so far is read the first few pages with the basic judgement, then search the rest looking for any concurring or dissenting opinions and trying to get the gist of those opinions as well. I've avoided reading or watching anything else so far. I'm writing down some initial thoughts to see how well I'm understanding this decision.

Based on that fairly quick scan, I will say that I'm not thrilled, nor am I angry. There's a fair amount of logic here.

It looks to me like the court is setting up three concentric circles of presidential activity. At the center is a core of constitutionally specified activities where the president will have absolute immunity. Around that center is a ring of official acts, where the president will enjoy a presumption of immunity, but not absolute. Lastly, there are personal acts - including those of a presidential candidate - where there is no immunity.

All of that feels right on a gut level. There is no absolute immunity for everything a president does, nor is there a complete ability to examine every little action of a president. It will be up to the trial courts to determine what actions fit into each of these categories.

That will, by its nature, make any trial a long proceeding. The court will first need to determine which category the alleged acts fit into before proceeding to trial. That's going to invite lots of pre-trial motions and evidentiary hearings, followed by more motions and more hearings before the judge renders a decision. Then the appeals of these pre-trial decisions and the appeal of those appeals to the USSC. All before there can be an actual trial.

In immediate practical terms, I could see this extending Trump's Jan 6 case out for another 2 or 3 years easily, and perhaps much longer.

At the broader level, it still leaves me with questions. One of the auxiliary opinions mentioned something about bribery. What if the president accepts a bribe to perform an official act - say something like signing or vetoing a bill passed by Congress. That act is clearly within the constitutionally outlined acts of a president. Does this mean it's OK for the president to accept bribes for such actions? (The ghost of Spiro Agnew would like to know if he could have gotten away with it.)

--Peter

At the broader level, it still leaves me with questions.

Me too. I know it's somewhat hyperbolic, but could this ruling make it possible for the POTUS to order a SEAL team to kill a US citizen? It's not clear to me that it doesn't. THAT would be a disastrous result if that's what this decision makes possible. I don't care whom the POTUS is. While I wouldn't shed a tear if Trump had a stroke and died, I would NOT want to live in a country where Biden could order a hit on Trump with complete immunity.

Me too. I know it's somewhat hyperbolic, but could this ruling make it possible for the POTUS to order a SEAL team to kill a US citizen?

Sigh.

Go read Peter's other post. It's actually a cogent analysis of what the opinion said. The key piece that you're all forgetting - and don't let me stop a good left wing panic festival here - is the "core" parts of the Job of President.

Barack Obama ordered a drone strike that ended up killing an American citizen. I think you would agree that in getting the terrorist he was after - the kid's father - that the 16 year old was an unfortunate collateral casualty. Would you not agree that taking out terrorists is a perfectly "core" part of a President's job function?

Or would you rather some rogue prosecutor in Florida charge Obama with 1st degree, premeditated murder of an American citizen? Somehow I don't think that's what you want.

This ruling nails it. Presidents can't go around depriving people of life and liberty unless there's an extreme justification for it and this ruling doesn't change that.

Me too. I know it's somewhat hyperbolic, but could this ruling make it possible for the POTUS to order a SEAL team to kill a US citizen?

I don't think so. Not only does the President lack any authority to do that, but in fact an extrajudicial killing would be clearly unconstitutional. It wouldn't be an official act within his Constitutional authority (the innermost circle), or an official act to which a presumption of immunity would apply (the second circle). Seems like that would pretty clearly be an unofficial act.

Plus, don't forget that the immunity being discussed would only apply to the President. So matter what outcome was reached with the President (again, I think under this ruling he would have no immunity), everyone else would be subject to prosecution. So the shooter would be guilty of first degree murder, as would (probably) all of the other members of the Seal team that participated in the effort. Probably everyone in the chain of command between the President and the Seal team would be guilty of conspiracy to commit, in addition to a host of other lesser crimes.

Presidents can't go around depriving people of life and liberty unless there's an extreme justification for it and this ruling doesn't change that.

But that is the question. Does it change that? In my previous post, I asked (or more correctly, a Justice asked, I just fleshed it out) about bribery. Is is OK for a president to accept a bribe to perform an official act? It's the exact same question as asking if a President can order the killing of a US citizen on US soil. It's not clear that the answer is "no." Not clear that it's "yes," either.

My gut says the answer should be "no." But I can certainly make an argument from the opinion (well, the tiny bits I've read - still haven't got to the whole thing, yet) that the answer is "yes." These normally illegal things are not prosecutable as a result of the presidential immunity resulting from this decision. Of course, we won't know for sure until an appropriate case comes up.

We just need a former president who is accused of criminal acts, is indicted for those alleged acts, and goes to court so that the case can eventually wend its way to the Supreme Court.

--Peter

But that is the question. Does it change that? In my previous post, I asked (or more correctly, a Justice asked, I just fleshed it out) about bribery. Is is OK for a president to accept a bribe to perform an official act? It's the exact same question as asking if a President can order the killing of a US citizen on US soil.

It's not the same question.

In the bribery case, there is a legal official act involved. For example, if the President accepts a bribe to grant a pardon, there is no question that the act being performed - granting a pardon - is within the power of the President. Granting the pardon was absolutely within his power, and the question is whether exercising that power for an illegal/illicit purpose can be criminalized.

But in the assassination case, there isn't a legal official act. The President has no power to assassinate a U.S. citizen on U.S. soil. An extrajudicial killing isn't merely outside of the President's lawful authority; it's forbidden to the President (or anyone in the federal government) to do that under the 14th Amendment. There is no exercise of lawful executive power that the President can point to as the basis for immunity.

But that is the question. Does it change that?

No it doesn't.

These normally illegal things are not prosecutable as a result of the presidential immunity resulting from this decision. Of course, we won't know for sure until an appropriate case comes up.

We just need a former president who is accused of criminal acts, is indicted for those alleged acts, and goes to court so that the case can eventually wend its way to the Supreme Court.

Okay, let's put it to the test.
Arrest Barack Obama for the premeditated murder of Abdulrahman al-Awlaki, a US Citizen, with a drone strike on August 26, 2011. You may read about it here

https://www.theatlantic.com/politics/archive/2012/...

He was the son of Anwar al-Awlaki, who was also born in America, who was also an American citizen, and who was killed by drone two weeks before his son was, along with another American citizen named Samir Khan. Of course, both Anwar al-Awlaki and Samir Khan were, at the very least, traitors to their country -- they had both gone to Yemen and taken up with Al Qaeda in the Arabian Peninsula, and al-Awlaki had proven himself an expert inciter of those with murderous designs against America and Americans: the rare man of words who could be said to have a body count. When he was killed, on September 30, 2011, President Obama made a speech about it; a few months later, when the Obama administraton's public-relations campaign about its embrace of what has come to be called "targeted killing" reached its climax in a front-page story in the New York Times that presented the President of the United States as the last word in deciding who lives and who dies, he was quoted as saying that the decision to put Anwar al-Awlaki on the kill list -- and then to kill him -- was "an easy one." But Abdulrahman al-Awlaki wasn't on an American kill list.

Based on your analysis, was Barack Obama justified in killing al-Awlaki?

Okay, let's put it to the test.
Arrest Barack Obama for the premeditated murder of Abdulrahman al-Awlaki, a US Citizen, with a drone strike on August 26, 2011.

On what grounds?

Obama didn't personally kill al-Awlaki, obviously - which makes a premeditated murder charge all-but-impossible (there are a few exceptions that would allow a person other than the actual killer to be charged, but none relevant here).

You might try to build a conspiracy to commit murder charge, but there's no indication that Obama ever knew about or authorized the killing of al-Awlaki. The criticism against Obama was that the policy of drone strikes and a kill list led to al-Awlaki's death, and as the Executive any terrible policy redounds to the detriment of the President. But there wasn't ever any indication that I'm aware of that Obama was individually involved in, or even aware of, that killing. He wasn't one of the officials named in the lawsuit filed by the relatives against the government over the death, nor did that suit have any allegations that he was involved with or aware of the order to strike al-Awlaki:

https://ccrjustice.org/sites/default/files/assets/...

Given that, Obama almost certainly couldn't even be charged with a crime, even if the statute of limitations hadn't run out ages ago.

On what grounds?

Several. Obama gave the order for drone strikes, and as a result an American citizen died. Notice I didn't argue about the father or the other guy, just the son. The policy is Obama's, it happened under his authority as President, and as such he is responsible as CinC.

Given that, Obama almost certainly couldn't even be charged with a crime, even if the statute of limitations hadn't run out ages ago.

There's no statute of limitations for murder.

At any rate, the point isn't to try Barack Obama here. The point is to show that Presidents do things that require immunity. I chose the Obama example because the "Trump can order Seal Team 6 to blow up..." and what not is extremely boring. Not to mention stupid.

Actually this is legal theory that former Atty General Bill Barr was in favor of "The Unitary Executive".

https://en.wikipedia.org/wiki/Unitary_executive_th...

Basically the President can do what he wants.

If Trump is an "existential threat to Democracy", perhaps ordering a Seal Team operation is covered by immunity?

intercst

Obama gave the order for drone strikes, and as a result an American citizen died.

That's not sufficient to charge a crime. You'd have to prove he ordered that specific drone strike against that specific person to support a premeditated murder charge. Even to get to conspiracy to commit, you'd almost certainly have to prove that he knew that al-Awlaki was on the target list (which apparently he wasn't), or at a minimum that the President knew that American citizens were on the target list. There's no indication that's true.

There's no statute of limitations for murder.

You can't charge Obama with murder. He didn't kill the guy - the drone pilot did. Probably the strongest charge you could get - if Obama was actually involved in that specific strike - would be a conspiracy to commit murder charge. And that's going to be barred by the statute of limitation.

Based on your analysis, was Barack Obama justified in killing al-Awlaki?

OK. I'll play along as a learning exercise.

Under the USSC decision released today, I would say Obama is immune from prosecution, or at worst given the presumption of immunity. In my opinion, the targeted killing on foreign soil of those fighting against the United States in declared or undeclared acts of war is well within the circle of immune official acts per this ruling. Such killings also run the risk of collateral damage, including the deaths of innocents. That collateral damage should be minimized, but the risks of collateral damage don't have to be completely eliminated. That the son was killed separately from the father doesn't seem to change anything.

Obama would argue absolute immunity, or barring that, presumptive immunity. It would be up to the prosecution (that's you in this little thought experiment) to show that the presumption of immunity did not apply. The only evidence you seem to have presented to rebut the presumption of immunity is that the son was not on a kill list. As the judge, I'd ask if all of those killed are on kill lists. If you couldn't present some evidence to show that a person must be on a kill list before they are killed, I'd rule the presumption of immunity was not overcome.


To differentiate this situation from the previous silly hypothetical killings by Seal Team 6 on US soil, let's look at that. You can't order the US military to kill anyone. It needs to be connected to acts of war against the US. Killing a person such as a political enemy on the streets of the US is outside of the official acts of the President, and outside of the scope of the military.

--Peter

You're missing the point here.
The point is that the Supremes got the ruling right.

Under the USSC decision released today, I would say Obama is immune from prosecution, or at worst given the presumption of immunity. In my opinion, the targeted killing on foreign soil of those fighting against the United States in declared or undeclared acts of war is well within the circle of immune official acts per this ruling. Such killings also run the risk of collateral damage, including the deaths of innocents. That collateral damage should be minimized, but the risks of collateral damage don't have to be completely eliminated. That the son was killed separately from the father doesn't seem to change anything.

Precisely.

You can't order the US military to kill anyone. It needs to be connected to acts of war against the US. Killing a person such as a political enemy on the streets of the US is outside of the official acts of the President, and outside of the scope of the military.

Also correct 100%.

You're missing the point here.
The point is that the Supremes got the ruling right.

You brought up Obama as an example of a prior President who might be affected by the SCOTUS ruling in the specific instance of the al-Awlaki killing. I don't think that's correct. Obama didn't do anything in connection with that killing that could give rise to criminal prosecution in the first instance (at least as far as I can discern, and no one has publicly alleged otherwise), so it's not germane to whether SCOTUS got the ruling right or not.

You brought up Obama as an example of a prior President who might be affected by the SCOTUS ruling in the specific instance of the al-Awlaki killing.

I brought up Obama as an example of somebody who a) would fall under this ruling b) could potentially be targeted for political reasons and c) wasn't Trump.

I figured the Defend Obama antibodies would come out hard for that.

I brought up Obama as an example of somebody who a) would fall under this ruling b) could potentially be targeted for political reasons and c) wasn't Trump.

Right, but Obama didn't commit a crime while President - so he wouldn't fall under this ruling. There are many criticisms that can be levied against the drone strike policy, but not that Obama personally committed murder.

I brought up Obama as an example of somebody who a) would fall under this ruling b) could potentially be targeted for political reasons and c) wasn't Trump.

So let's play the game the other way around. What are the actual Jan 6 charges against Trump?

1. Conspiracy to defraud the US via lying and trying to get legitimate votes discounted.
2. Conspiracy to obstruct an official proceeding.
3. Obstruction and attempted obstruction of an official proceeding.
4. Conspiracy against rights

Count 1.
Is lying within the core constitutional duties of a president? I'd say no. So no absolute immunity. It is within the ordinary duties of a president? Maybe. Sometimes lying to the people is necessary. Is it in this case? Probably not. I'd guess that Trump has a presumption of immunity, but that presumption is likely to be overcome. On the voting part, is overseeing elections part of the core duties? No. Part of the ordinary duties? Again, maybe. Running elections is generally within the domain of the states, not the federal government. The exception happens when the Justice department goes to court and manages to show a violation of one of the voting rights acts. Then we get some federal oversight of voting that might fall under the president's purview. But most (all?) of the states in question were not under federal oversight, so I don't see checking on elections as an ordinary presidential duty. So no presumption of immunity.

Count 2.
This gets an added wrinkle from the decision a few days ago. That one basically requires obstruction via documents or other tangible items. I'm going to assume that problem is overcome because of the fake elector documents even if influencing Pence has to get dropped. So is conspiring to do an illegal activity a core constitutional duty? No. Is it within the circle of expected duties? No. That leaves it as a personal act and not immune.

Count 3.
This one is mainly tied to the riot itself. I'm guessing it gets dropped because of the previous decision. So we don't need to look at it.

Count 4.
Intimidating and threatening voters isn't anywhere even close to official duties, and neither would conspiracy to do so. No immunity.


With that out of the way, the fact that it seems to work for both Obama and Trump doesn't make this a good ruling. It just puts unnecessary obstacles in the path of seeking justice. One of the foundations of the justice system is that justice delayed is justice denied. People (both the accused and the people of the state/nation on whose behalf the prosecution works) have the right to timely justice. Adding these requirements to the process does nothing but slow the process down.

--Peter

Count 2.
This gets an added wrinkle from the decision a few days ago. That one basically requires obstruction via documents or other tangible items. I'm going to assume that problem is overcome because of the fake elector documents even if influencing Pence has to get dropped. So is conspiring to do an illegal activity a core constitutional duty? No. Is it within the circle of expected duties? No. That leaves it as a personal act and not immune.

I was thinking the fake elector slates as docs would work for obstruction too. But I don't understand why docs are deemed necessary for obstruction. I'll have to find a good comment on that.

Me too. I know it's somewhat hyperbolic, but could this ruling make it possible for the POTUS to order a SEAL team to kill a US citizen? It's not clear to me that it doesn't.

I guess their point is to wait till it happens and somebody brings a lawsuit, then it'll be a matter for the courts

Right, but Obama didn't commit a crime while President </i<

a) It was a theoretical example
b) Given that he was never charged, you can't say that for sure

I was thinking the fake elector slates as docs would work for obstruction too. But I don't understand why docs are deemed necessary for obstruction. I'll have to find a good comment on that.

Whoops, remember now, the majority read 1) and 2) have to be read together,and 1) is about documents, even with the "or", and I agree with Barrett.

Right, but Obama didn't commit a crime while President </i<

Dope:
a) It was a theoretical example
b) Given that he was never charged, you can't say that for sure
---------------------------

Dope: There's a former President breathing a sigh of relief this morning.

Oh, his name isn't Donald Trump. It's Barack Obama. If today had gone the other way a vindictive prosecutor could get 'ol Barack on charges of murder for the extrajudicial whacking of folks via drone.

But in libbyland it's important to feel good rather than get the law right, which is what the Supremes did today.

I weep for the sheer absence of civics knowledge among the left-leaning voters.

You said that Dope. Doesn't look like theoretical.

Seems like that would pretty clearly be an unofficial act.

A POTUS could argue that only a POTUS could order that, and therefore it was an official act. I don't know how posse comitatus would come into play, since SEAL teams (or any military arm) aren't supposed to conduct operations (outside of training) on US soil.

Though it would only apply to POTUS, so everyone else would be liable (and since murder is not a federal crime, the POTUS couldn't pardon the participants in whatever state they are charged). I see that.

A POTUS could argue that only a POTUS could order that, and therefore it was an official act. I don't know how posse comitatus would come into play, since SEAL teams (or any military arm) aren't supposed to conduct operations (outside of training) on US soil.

He could argue it, but he'd be clearly wrong. Trivially because there are other officers in the chain of command who can (and do) give orders to Seal Team 6. More importantly, because the fact that the POTUS gives the order doesn't make it an official act exercising executive authority. If POTUS orders Seal Team 6 to pick up Tiffany's dry cleaning or man the phone banks at his re-election campaign, that's not part of the executive function under the Constitution (nor is it an authorized power). So it wouldn't be an official act, and neither would a political assassination of a U.S. citizen on U.S. soil.

Trivially because there are other officers in the chain of command who can (and do) give orders to Seal Team 6.

Ordering Seal Team 6 to assassinate American citizens clearly violates the US Constatation, the UCMJ and a billion other things and is CLEARLY not part of "official Presidential duties".

It makes zero sense that a court that's been taking a chainsaw to executive branch power is now going to turn around and allow the President to do just do whatever.

He could argue it, but he'd be clearly wrong. Trivially because there are other officers in the chain of command who can (and do) give orders to Seal Team 6. More importantly, because the fact that the POTUS gives the order doesn't make it an official act exercising executive authority. If POTUS orders Seal Team 6 to pick up Tiffany's dry cleaning or man the phone banks at his re-election campaign, that's not part of the executive function under the Constitution (nor is it an authorized power). So it wouldn't be an official act, and neither would a political assassination of a U.S. citizen on U.S. soil.

And this is my understanding too, thought it took a bit to find some clarity in my mind because there's such emotion behind this.

But I remember Jefferson writing that there are times when circumstances warrant quick action to preserve life, liberty, and property even if not withing Presidential powers at the moment. That a President must make those decision, but manning phone banks isn't one of those times.

But Tiffany's dry cleaning? Hmmm.... :)

He could argue it, but he'd be clearly wrong.

Fair enough. But until he is adjudicated wrong, he continues as if he were right.

First, he'd have to be charged with a crime, something the DoJ won't do while the president is in office. Only once he's out would they even start investigating. Once charged, he could argue it in court. File endless motions before trial. File every interlocutory appeal that is even remotely possible. Appeal every loss there to the USSC. Then finally go to trial, file more motions during trial before losing. Then file an appeal, file endless motions there before losing. Lastly, appeal to the USSC and lose there. Only then will he actually be wrong. Until then, he is presumed right - or innocent.

Of course, by then we're all dead of old age.

As I think about it more, that's the real problem here.

If I remember correctly, there was another Trump case (or maybe just another appeal in this case) that the USSC did not grant cert, presumably to let the lower courts do their job, find the facts, and then allow them to make a ruling. This time, they granted cert and threw an entirely new process into the mix, forcing the district court to back up quite a bit and do more work before going to trial. They could have denied cert, let the lower courts do their fact finding job and then take up the case with a much fuller record on which to base their decision. Heck, it's even possible they wouldn't have gotten the case back at all if the district court found Trump not guilty.

While they did move a bit quicker than their usual snail's pace (moving up to a tortoise pace, perhaps?) it's still a slow process when some degree of speed is needed. Had they denied cert, the worst scenario for their workload is that they get the case back, make this same decision, and have to remand back to the district court to do a bit of additional fact finding on this middle circle of presumptive immunity. They'd still only touch the case once, instead of the two times they will have to deal with now.

Most importantly, the people of the country would have some important facts available to them on which to base their voting decisions in November. Now the people will not have those facts. For a country based on an informed electorate, keeping them uninformed is a very bad look.

--Peter

Fair enough. But until he is adjudicated wrong, he continues as if he were right.

First, he'd have to be charged with a crime, something the DoJ won't do while the president is in office. Only once he's out would they even start investigating. Once charged, he could argue it in court. File endless motions before trial. File every interlocutory appeal that is even remotely possible. Appeal every loss there to the USSC. Then finally go to trial, file more motions during trial before losing. Then file an appeal, file endless motions there before losing. Lastly, appeal to the USSC and lose there. Only then will he actually be wrong. Until then, he is presumed right - or innocent.

Nearly all of that was true before the ruling. Trump's allowed to - and has - raised bunches of defenses and arguments why he's not guilty in the lower courts. Even the NY state decision. They were (nearly) all denied, so he hasn't final adjudication of most of them - and he's appealing many of them as well. This is not unusual - a well-resourced defendant with access to competent counsel has gobs and gobs of arguments and points of entry to raise arguments in order to delay the absolute "finality" of their judgment. Very few defendants bother, because nearly all of those delaying arguments are so likely to lose that it's not worth blowing the money for a few months of delay. Only in very unusual contexts do months matter.

Note that he's presumed innocent in all of these criminal proceedings anyway, regardless of questions of immunity.

Most importantly, the people of the country would have some important facts available to them on which to base their voting decisions in November. Now the people will not have those facts. For a country based on an informed electorate, keeping them uninformed is a very bad look.

The people of the country have nearly all of the facts available to them now - what they don't have is knowledge of the outcome of the trial. Regardless of whether you think that's a "bad look" or not, it's not really something that's appropriate for the judiciary to take into account in its decisions regarding the case. The theory here is that Trump is being tried like any other criminal defendant - he's neither to be benefited nor penalized because of his status as a prominent political figure. The government doesn't really have a credible interest in rushing a case (or any decisions in that case) for the purpose of affecting a political contest. Which is why in all of Jack Smith's briefs to the SCOTUS on timing and expediting, he never cited getting a verdict prior to the 2024 election as a governmental concern. Probably because he would have been slammed by the courts if he tried to argue that.

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