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Rather than piecemeal respond to scenarios, I thought it might be helpful to lay out what U.S. v. Trump holds, and why I think most of the the scenarios that are being spun about are not affected by the ruling.

At core, the ruling holds that the President cannot face criminal liability for things that are actually part of his job. Steps that he is lawfully allowed to take, either under the Constitution or because they're part of the laws that he's supposed to execute, cannot expose him to criminal prosecution. Any step that he can lawfully take in order to execute the office of the President cannot be the basis, in whole or in part, of a criminal proceeding.

"But wait," I hear you say. "Why on earth would the President need protection for things that are a lawful part of his job?" The answer, my friend, is that there are lots of circumstances in which otherwise lawful behavior can (and is) subject to criminal punishment.

The main category of this are inchoate offenses (link at the bottom of the post). These are the crimes that are committed by taking a punishable step towards the commission of another crime. The most common ones are attempt, solicitation, and conspiracy. The key to those crimes is that the "punishable step" can (and often is) be a completely legal act.

We see that most obviously with conspiracy. Suppose you and I download blueprints of the local bank, buy a beat up old car for cash, purchase some balaclavas and big burlap sacks, and make a schedule of the comings and goings of the guards. None of those things are illegal. But they can all be punishable steps if they're done in furtherance of robbing the bank. Even if we don't actually commit the crime of robbing the bank, we've still committed crime of conspiracy to rob the bank. It's the purpose of the otherwise-legal acts that makes them subject to criminal sanction.

The majority opinion prevents Congress from doing this to any aspect of the President's lawful job. If the President is doing something that's part of the actual job of being President, it can't be made punishable as an element of an inchoate crime.

That gets him out from under a lot of inchoate criminal liability (which is why it's bad for Jack Smith's prosecution of Trump, because three of the four charges are conspiracy charges). A conspiracy charge allows the government to punish someone for otherwise legal acts, when those otherwise legal acts are committed in furtherance of the conspiracy. The US v. Trump decision prohibits that. But what it doesn't do is provide him immunity for things that aren't lawfully part of his job.

And yet all the parade of horribles we've been discussing are discussing things that are illegal for the President to do. The President can't legally assassinate a political rival. He can't legally take a bribe. Those aren't the underlying actions that the opinion holds are immune. Where the opinion protects the President is when otherwise legal parts of his job are alleged to have been undertaken for a corrupt motive or in furtherance of another crime (ie. conspiracy) - not when the actions he's taking are in and of themselves illegal. The President is allowed to do the lawful parts of his job (says the majority) regardless of whether Congress or the courts think that he's doing that lawful thing with an unlawful motivation, because the Constitution assigns all of the choice to the President and not the Congress or the Courts.

There are criticisms that can be lodged against that reasoning. But it does not immunize actions by the President that aren't a legal part of his job, which is why so many of these scenarios are silly.


https://www.law.cornell.edu/wex/inchoate_offense

albaby1: And yet all the parade of horribles we've been discussing are discussing things that are illegal for the President to do. ... The President is allowed to do the lawful parts of his job (says the majority) regardless of whether Congress or the courts think that he's doing that lawful thing with an unlawful motivation, because the Constitution assigns all of the choice to the President and not the Congress or the Courts.

Yeah, no.

Here's the problem when the high court is in the pocket of a tyrant: In USCA11 Case 23-12958 Meadows argued that the Take Care Clause, U.S. CONST. art. II § 3, "empowers the President with broad authority to 'ensure that federal voting laws are enforced.' But he concedes that the President has no 'direct control' over the individuals -- members of Congress and state officials -- who conduct federal elections. And tellingly, he cites no legal authority for the proposition that the President's power extends to 'assess[ing] the conduct of state officials.' We are aware of no authority suggesting that the Take Care clause empowers federal executive interference with state election procedures based solely on the federal executive's own initiative and not in relation to another branch's constitutionally authorized act."

Well, umm, wait a second, writes John Roberts in Trump v. United States, I don't know about that: "The indictment’s remaining allegations involve Trump’s interactions with persons outside the Executive Branch: state officials, private parties, and the general public. In particular, the indictment alleges that Trump and his co-conspirators attempted to convince certain state officials that election fraud had tainted the popular vote count in their States, and thus electoral votes for Trump’s opponent needed to be changed to electoral votes for Trump. After Trump failed to convince those officials to alter their state processes, he and his coconspirators allegedly developed and effectuated a plan to submit fraudulent slates of Presidential electors to obstruct the certification proceeding. On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. As the Government sees it, however, Trump can point to no plausible source of authority enabling the President to take such actions. Determining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment’s extensive and interrelated allegations. The Court accordingly remands to the District Court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial."

Sorry, Roberts has crowned us a King.

Yeah, no.

How does that conflict with what I wrote?

Trump alleges that his conduct (communicating with state officials) was part of his lawful job. The government disagrees. SCOTUS specifically holds that this not conduct that is presumptively immune, but instead is conduct that the government might prevail in arguing is not part of the President's lawful job.

There will be disagreements over what is a lawful part of the President's job. Those disagreements will be resolved in the courts. But if something is not a lawful part of the President's job, the majority opinion does not extend immunity to it.

There are criticisms that can be lodged against that reasoning. But it does not immunize actions by the President that aren't a legal part of his job, which is why so many of these scenarios are silly.

Which is why Sortamayor's Seal Team 6 claim looks so daft. I stared at that when I saw it - am I missing something? No. Not missing anything. Someone should've told her to change that.

Thanks AB1 for putting a cap on the crazy!

Lapsody: Which is why Sortamayor's [sic] Seal Team 6 claim looks so daft. I stared at that when I saw it - am I missing something?

Yeah, you are.

Since the president commands Seal Team 6, he can instruct it to do anything he likes and as long as he argues that “I was doing that pursuant to my constitutional authority” the courts are going to grant him immunity.

There's no way for you to argue that he was misusing his power, even if he uses his power corruptly. As Sotomayor argues in her dissent, this new rule is going to prevent prosecutors from even charging a president with the crime of manipulating the tools of his office to engage in corruption after he leaves office.

Just because you say, "Well, gee, it's obvious that's not within his constitutional authority" doesn't make it so and good luck even getting the complaint into a courtroom.

Since the president commands Seal Team 6, he can instruct it to do anything he likes and as long as he argues that “I was doing that pursuant to my constitutional authority” the courts are going to grant him immunity.

Why? The President has no constitutional authority to command Seal Team 6 to assassinate a U.S. citizen on U.S. soil. It's completely forbidden by the 4th and 5th Amendments.

No court would grant him immunity for this. I don't understand why you think any ever would....

Isn't this where if this were an argument with Dope he would say, "We'll have to agree to disagree here. " :)

This might help you and Sotomayor, since it’s clear neither of you have read this:

…nor be deprived of life, liberty, or property, without due process of law;

It’s from this document that these guidelines and things arise that tell a Prez what can and can’t be done. We make Presidents swear to uphold it.

As a side note, after reading these threads your posts make more sense now.

Yeah, you are.

Since the president commands Seal Team 6, he can instruct it to do anything he likes and as long as he argues that “I was doing that pursuant to my constitutional authority” the courts are going to grant him immunity.

No. I'm not missing anything CO, this time I'm not. The President can instruct Seal Team 6, but first, they may not do it. Second, if it is illegal to do, the courts are not going to grant him immunity. This just doesn't compute. You can make up scenarios all you want, but this isn't so.

No. I'm not missing anything CO, this time I'm not. The President can instruct Seal Team 6, but first, they may not do it. Second, if it is illegal to do, the courts are not going to grant him immunity. This just doesn't compute. You can make up scenarios all you want, but this isn't so. - Lambo

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What you may be overlooking is that a severe case of TDS is known to open up portals to new realities that only those so-afflicted can perceive.

What you may be overlooking is that a severe case of TDS is known to open up portals to new realities that only those so-afflicted can perceive.

Or a really poorly programmed political chat bot. You can tell they forgot the logical subroutines and didn’t include the US Constitution in the training data.

Determining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment’s extensive and interrelated allegations. The Court accordingly remands to the District Court to determine in the first instance whether Trump’s conduct in this area qualifies as official or unofficial.

At my own peril following behind Albaby, let me take a crack at this.

The prosecutors argue that a president (Trump) has no authority to intervene in state elections on his own. Trump says he does. This is a question of whether this action is part of the president's core duties, his peripheral duties, or outside of this duties, so hearings and evidence are needed to make that determination. Once there is evidence and arguments, then the district court judge can make a decision based on the evidence and arguments. Because that hasn't been done in the case yet (because the Supremes just added that requirement), the case has to go back to the district court for appropriate hearings with evidence and arguments.

They haven't crowned a king quite yet. But it is setting the stage to do so. The district court will make their determination, and it will almost certainly get appealed. The appellate court then gets a crack at it - and no matter what they decide, it will get appealed to the USSC. Again. Then if they say this is a core presidential duty because everything a president does is legal (thanks Richard) - oops, I mean a core presidential duty, they will have put the crown on his head.

--Peter <== waxing cynical there at the end

am I missing something?

Well, that exact question (more or less) was asked by one of the Justices during oral arguments. And Trump's lawyers tried to argue that it would be a legal thing for a president to do. So it has some history in this case. That's why it keeps popping up.

--Peter

They haven't crowned a king quite yet. But it is setting the stage to do so. The district court will make their determination, and it will almost certainly get appealed. The appellate court then gets a crack at it - and no matter what they decide, it will get appealed to the USSC. Again. Then if they say this is a core presidential duty because everything a president does is legal (thanks Richard) - oops, I mean a core presidential duty, they will have put the crown on his head.

OK, Peter, I'm getting cynical. If we lose 3 of 4 charges in Jack's case because they depend on conspiracy with advisors- Do you have any idea where these inadmissible advisor conversations stop? I assume the secretary overhearing a conversation is out, but just how far down the conspiracy chain does it go? I would think only the person talking directly to Trump may not be admissible.

It seems to me that if the conversation is outside of his core duties, say a conversation with Roger Stone regarding the fake elector scheme (which should be outside) as an example. This was the point I was driving at with Albaby, and it seems it's going to make it very hard to deal with a criminal type getting into that office.

The Supremes knew this when they decided the case too. Well, fireworks were good tonight, but I'm disheartened.

What you may be overlooking is that a severe case of TDS is known to open up portals to new realities that only those so-afflicted can perceive

No. I took a look. This is being touted by some legal pros so I have no problem with anyone thinking this way. It's very much out there.

Albaby: Why? The President has no constitutional authority to command Seal Team 6 to assassinate a U.S. citizen on U.S. soil. It's completely forbidden by the 4th and 5th Amendments.

No court would grant him immunity for this. I don't understand why you think any ever would....

I REALLY want to hear Sotomayor clarify what she meant by her Seal Team 6 scenario. Was it just hyperbole for rhetorical effect, or does she really think that scenario is possible and could satisfy the SCOTUS decision granting full Presidential immunity "for official acts".

There are plenty of "legal experts" still saying that the Seal Team 6 scenario is a real possibility, some of whom surely must have given this at least as much thought as our resident legal expert Albaby!

I REALLY want to hear Sotomayor clarify what she meant by her Seal Team 6 scenario. Was it just hyperbole for rhetorical effect, or does she really think that scenario is possible and could satisfy the SCOTUS decision granting full Presidential immunity "for official acts".

There are plenty of "legal experts" still saying that the Seal Team 6 scenario is a real possibility, some of whom surely must have given this at least as much thought as our resident legal expert Albaby!

I see a lot of people with excellent legal backgrounds falling into what I consider the Official Act trap, so it does need clarification at the national level. At first blush it does confer complete immunity for Seal Team 6. But that's waay beyond what is reasonable. Also, I'm unhappy withe the inchoate prohibition as it makes it much more difficult for prosecutors to build a case on a rogue President.

I've also been unhappy in finding out just how much our government operates on "norms". Norm is a fine fellow, but I didn't vote for him. :)

AS for the Seal Team 6 - that's referenced at the oral argument stage and not responded to well by the person it was directed to, so the confusion is understandable. I'd like it clarified. Looks like a bad way to write a decision. Where is Scalia when you need him?

g0177325: I REALLY want to hear Sotomayor clarify what she meant by her Seal Team 6 scenario. Was it just hyperbole for rhetorical effect, or does she really think that scenario is possible and could satisfy the SCOTUS decision granting full Presidential immunity "for official acts".

It's not because it's "an official act" but because the decision grants total immunity for any actions a president takes using the “core powers” that the Constitution bestows on the office. One such power is the authority to command the military.

If Trump, as commander in chief, ordered his troops to assassinate somebody or stage a coup, that would seem to fall within the absolute immunity provision of the court’s decision.

Now maybe he'd have a hard time finding someone to carry out such an order but I'm betting someone would be willing to do so.

And as someone else here pointed out, Alito broached the scenario during oral arguments. Roberts, writing the majority opinion did not attempt to directly carve out such extreme examples but instead admonished the dissenters for “fear mongering on the basis of extreme hypotheticals.”

Yet as Trump's own former Defense Secretary, Mark Esper, said, Trump wanted to shoot protesters. Even his own AG, Bill Barr, said Trump often floated the idea of killing his critics.

So, sorry, but albaby1 still seems to believe Trump is a rational human being. He ain't.

goofy: It's not because it's "an official act" but because the decision grants total immunity for any actions a president takes using the “core powers” that the Constitution bestows on the office. One such power is the authority to command the military.

Albaby would say that even the core power of commanding the military doesn't permit him to do something illegal via the military. So, even if some members of the military were willing to carry it out, that would not shield the president from prosecution for a nevertheless still illegal act. This would be no consolation to the person that was murdered, but would still be a deterrent to a rational president.

But I still want to hear more from the three dissenting liberal judges.

It's not because it's "an official act" but because the decision grants total immunity for any actions a president takes using the “core powers” that the Constitution bestows on the office. One such power is the authority to command the military.

Sigh. The positions differ, and I do admit there are Lehal Pros reading it that way. I just agree with Albaby, and before he explained it, that if the act is outside of the scope of his authority (powers) then it isn't an official act except possibly in limited circumstances which I tried to describe. It isn't within Presidential powers to order Seal Team 6 to assassinate a political rival. If you accept that, then that action becomes an unofficial act. I just don't think it was written well, and it appears Sotomayor may have misunderstood it as well, and that goes back to oral arguments. If it isn't reasonably clear, it's a bad decision though.

I don't like the limit on inchoate crimes though. The Constitution spelled it out for Congress, if they had wanted to, they could spell it out for the President. Maybe it was too touchy a subject for three months of wrangling.

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