The Immunity Decision

[Doctor Steuss]

Justice Thomas even went outside the issues that the court took up on appeal and sent Aileen Cannnon an engraved invitation to throw out the documents case on the grounds that the Special Prosecutor doesn't have the the Constitutional authority to prosecute.

I'm confused by this. Didn't the majority of the crimes in the documents case occur after Trump's term as President had ended?

[Res Ipsa]

Justice Thomas even went outside the issues that the court took up on appeal and sent Aileen Cannnon an engraved invitation to throw out the documents case on the grounds that the Special Prosecutor doesn't have the the Constitutional authority to prosecute.

I'm confused by this. Didn't the majority of the crimes in the documents case occur after Trump's term as President had ended?

You should be. The Supreme Court limited its grant of certiorari to the immunity issues raised by Trump in the January 6 case. My recollection is that the documents case is either entry or almost entirely based on conduct by Trump after he was President.

The separate issue of whether the Special Prosecutor had authority to bring charges was not accepted for Supreme Court review in the Jan. 6th case, so there was absolutely no reason for Thomas to opine on it. But it is one of the many motions to dismiss that Cannon held a lengthy hearing on last week. Unlike immunity, the prosecutor’s authority is an issued in the Florida case. So, Thomas published an opinion on an issue that was not before the Court, but is currently being considered by Judge Cannon. Absolutely not what Justices have Constitutional authority to do.

in my opinion, there is no bottom to Thomas’s absence of ethics.

[Moksha]

in my opinion, there is no bottom to Thomas’s absence of ethics.

Republicans would argue he's the best money can buy.

[Res Ipsa]

I think actions as Commander in Chief in a declared war would be a reasonable approach. But I think "dangerous influence" raises all kinds of red flags. in the extreme portions of right wing politics that drive many of today's R positions (check out the Claremont Institute and its proponents), people who vote for Democrats are a "dangerous influence" to the extent that they should not be considered "American" at all. We already have state governments that target the rights of non-binary people and people who think structural racism/sexism are problems that the government should address as "dangerous influences." I'm loathe to give the President the right to declare a subset of Americas as "dangerous influences" and to use that designation as a justification to imprison or assassinate American citizens. That's McCarthyism on steroids. in my opinion, the outer edge of immunity for any branch should be powers the Constitution expressly grants to that branch.

Ouch, Res Ipsa, you hit square my lack of precision. I should have specified dangerous influence from foreign entities not just any body such as an unpleasant neighbor.

Thank you for your needed clarification. However you touch a real puzzle by specifying declared war. It has been important to respond to real threats prior to a war declaration. This is tricky and problematic.

My memory, aging, said WWII was last time the US declared war. I checked wikipedia, it agreed WWII was the last war declaration.

That’s my own Constitutional philosophy showing. While I’m not convinced that the War Powers Act is Unconstitutional, I’m convinced that it is a significant dereliction of duty by the US Congress. The Constitution is very clear: Congress has the power to go to war and the President has the power to prosecute the war. The Constitution included a significant limitation on the President’s powers as Commander in Chief — no standing army. I don’t believe that’s ever been amended. Instead, Congress adopted the convenient fiction that the US can have a standing army as long as it passes an appropriations bill every two years. in my opinion, that has partially enabled the locked in the ratcheting increase in military spending over time.

Look what happened with the AUMF against terrorism. It was originally limited to the 9-11 terrorist plot. At least it was a declaration of something that was debated and enacted by Congress. But it was enlarged by the executive to apply to — well, terrorists I suppose, but who exactly those terrorists are is classified.

So now the President has this mostly blank check to use the military against ill defined groups of people that aren’t included in the language of the AUMF.

Given today’s ruling, I have to wonder: can Biden sic the military on the 3% ers? Could Trump declare asylum seekers in Mexican border towns to be a terrorist threat and attack them in Mexico? Could he do the same with groups that assist people in obtaining asylum or refugee status, regardless of where they are located?

I think Congress’s virtual abdication of its authority to declare war in favor of the executive, which does not openly debate the use of military force in the way that Congress must do, has significantly empowered the executive to misuse the military. in my opinion, it’s sheer cowardice by Congresscritters that don’t want to be accused of soft on … something.

[Manetho]

To some extent, Sotomyor's dissent is both over the top and mischaracterizes the majority opinion. The language you quoted ignores the majority's distinction between core official acts (absolute immunity) and peripheral official acts (rebuttable presumption of immunity). Absolute immunity does not apply to all "official acts."

So which of her hypotheticals would that standard exclude?

[Res Ipsa]

To some extent, Sotomyor's dissent is both over the top and mischaracterizes the majority opinion. The language you quoted ignores the majority's distinction between core official acts (absolute immunity) and peripheral official acts (rebuttable presumption of immunity). Absolute immunity does not apply to all "official acts."

So which of her hypotheticals would that standard exclude?

That depends on where the line separating "core" official acts and "peripheral" official acts is ultimately drawn and how the courts apply the rebuttable presumption for peripheral official acts. That's for the trial level District Courts to determine and the appellate courts to review.

[Jersey Girl]

So...hypothetically speaking if DJT takes office he could shoot someone on 5th ave and get away with it and until then Biden could open fire in the White House shoot his entire cabinet to death, start making meth in the residence, turn the gardens into an opium farm, and just call it good.

Right?

[Res Ipsa]

So...hypothetically speaking if DJT takes office he could shoot someone on 5th ave and get away with it and until then Biden could open fire in the White House shoot his entire cabinet to death, start making meth in the residence, turn the gardens into an opium farm, and just call it good.

Right?

No.

[Jersey Girl]

So...hypothetically speaking if DJT takes office he could shoot someone on 5th ave and get away with it and until then Biden could open fire in the White House shoot his entire cabinet to death, start making meth in the residence, turn the gardens into an opium farm, and just call it good.

Right?

No.

Why not? Where have I gone wrong?

[Philo Sofee]

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold on to power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

...With fear for our democracy, I dissent.

That's an astounding dissent. It's hard to imagine a harsher one.

Note that the majority didn't have qualms about handing that kind of immunity to Biden, even though they're clearly at odds with his policies. They know Biden won't abuse that power, and they don't care if Trump does.

Some one could tell Biden to act in an official capacity and exile Trump out of the country and off the Presidential ticket for life.