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I’ve been trying to understand the ramifications of the recent US Supreme Court ruling. As I understand it…

  • Core Constitutional duties have absolute immunity
  • Official acts have presumed immunity (which I think just means a high bar to prosecute?)
  • Unofficial acts have no immunity

This means for an indictment, acts must categorized. I believe the opinion also says that you cannot look at the motivation of an act when categorizing it as official or unofficial.

Everyone’s favorite go to example is a president using the military to assassinate an election rival. Directing the military is an official act, and the motivation must be kept private.

I do struggle to picture a scenario where a president has a rival murdered and the courts really say “Welp, that’s fine.” So am I missing something? What don’t I understand? Or is it really that extreme?

2 Answers 2

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It is that extreme, unless SCOTUS refuses to act in accordance with the current ruling.

There's a number of things going on here. Ted's answer raises the issues of how muddy everything has been made by SCOTUS, so I'll focus on the specific mechanisms that cause this to be the case.

Category 2 May or May not Exist

If command of the military is found to be part of the core duties of the Presidency, then yes political assassination is absolutely a-okay now insofar as there would be no legal consequences accruing to POTUS for giving the order. Interestingly, however, there is room for prosecution of everyone but the President who decides to follow that order, as it conflicts with military law.

Regarding what orders must be disobeyed:

(iv) Relationship to military duty. The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the Service. The order may not, without such a valid military purpose, interfere with private rights or personal affairs.

The legal standard is what "a person of ordinary sense and understanding" would know to be unlawful.

Even if, however, the fact that Congress has some ability to establish the UMCJ and has been found able to limit the President's ability to wage war generally, the fact remains that the language in the SCOTUS opinion is not that Category 2 gets 'presumptive' immunity. It's that it gets 'at least presumptive' immunity. The court leaves open the possibility that Category 2's immunity is actually absolute.

The inability to consider motive is the real problem, however.

The inability to consider motive means we're no longer allowed to discuss the difference between legitimate vs. criminal uses of power. Quoting from Analysis from Lawfare:

As an example of the absurdity of this proposition, imagine a hypothetical only one shade from something that actually happened. Imagine that Trump as president had offered Ukrainian President Volodymyr Zelensky a frank bribe, instead of using the word-salad he gave in his “perfect” phone call with the Ukrainian leader. Imagine for example that he had said, “I will give you $10 billion in military aid if you deliver me dirt on Joe Biden.” Such an offer would be a crime if it were a corrupt offer meant to dig dirt on a rival; but if the president were earnestly concerned about, say, protecting national security and believed that “the dirt” referred to something genuinely sinister, this might be a defensible exercise of the president’s Take Care Clause responsibilities. The difference is purely one of intent and motive.

So if a prosecutor has the President, on tape, confessing that he ordered the assassination for political reasons, or even simple petty spite - that evidence is NOT admissible under this decision, regardless of what category the conduct falls within. This is the specific part Justice Coney Barrett did not join the majority for.

All of this must also be considered in light of a legal culture that values things like qualified immunity being broadly construed in the context of police use of excessive force, etc.

At best, no one actually knows what would happen or whether or not criminal charges could be brought against a sitting president who ordered the assassination of a political rival - but the extent to which SCOTUS has bent over backwards to make it anything less than an open-and-shut case to prosecute such a person they have profoundly broken with the core principles of the United States' founding.

It remains possible that someone brings charges anyway, and SCOTUS denies Cert, or issues a subsequent ruling that clarifies when/where a President can be said to have gone too far. But that is all 'maybe,' 'might,' and dependent on future behavior. Prior to this decision, legal scholars would have absolutely and confident stated that a President could NOT order assassinations (at least of fellow Americans).

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  • Thanks for the thorough breakdown! The presumed immunity part, when coupled with the motivation aspect, just shocks me. I’m not sure how presumed immunity is practically different than absolute when you cannot consider motivation. Commented Jul 8 at 15:18
  • @DoubtingThomas3005 Nor can anyone else I've listened to. There's hypothetical pathways this could take which could be okay, but as Ted points out below: the court has made an alarmingly naive assessment of how much good faith can be presumed of an elected executive. But well educated people are not freaking out for nothing, is as much as I can say with certainty. Commented Jul 8 at 15:20
  • @DoubtingThomas3005 That's why some commentators are saying this has made the President effectively or functionally immune.
    – Lag
    Commented Jul 8 at 16:34
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    I agree with your answer. My analysis at Law.SE is at law.stackexchange.com/questions/103653/… and quotes the source more heavily. The full text of the court decision is at supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf
    – ohwilleke
    Commented Jul 8 at 16:35
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    Thanks for the cross post @ohwilleke. It also stands out to me (as noted in the article shared below) that the majority decision states “allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act.” can overcome presumptive immunity. I don’t see how that evidence can exist without exploring motive, echoing what the Lawfare analysis states. Commented Jul 8 at 17:40
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People are having a problem analyzing this ruling because the ruling is — more or less — opposite to what's expected under rational law. In systems of rational law, appellate processes are meant to clarify ambiguities and rectify inconsistencies so that going forward the law is applied more equally and justly. Appellate processes are meant to address the fact that law in practice is messy, with many contextual and idiosyncratic nuances that can create undue favoritism or undue punishment. Appeals are meant to examine those irregularities and give rulings that universalize them and smooth them out.

In this ruling, by contrast, The Supreme Court has created ambiguity and pushed the issue back to the lower courts, effectively giving lower courts permission to apply the law in selective, non-equitable, or biased ways. The intention of the Justices (as I see it) is to create loop-holes, wiggle room, and opportunities for delay tactics that Trump's lawyers might leverage in the numerous court cases against him, to reduce the possibility that Trump might be sentenced in any of the numerous court cases he's facing (or perhaps at this point I should write: "the He's facing"…).

SCOTUS is not thinking about a president assassinating a rival, because most of the SCOTUS Justices seem to be caught in the aristocratic pretension that people with power (like presidents, billionaires, and justices) are by definition 'Superior People of Good Character': ones who are not generally subject to baser impulses, and can be relied upon to use discretion in their official actions. Someone like Justice Thomas or Justice Alito likely thinks to themselves — as do many Americans, mind you — that no president is likely to use his power to kill or imprison a rival in the US (that's third-world country stuff, not Great Nation stuff) and if a president did it would be because there was a valid national interest in the act. Instead, justices like Alito and Thomas perceive a Tump as a (putative) 'Superior Person of Good Character' being mercilessly attacked by lower-class agents: women, LGBTQ, people of color, atheists and abortionists, etc. They are merely trying to open things up so that Trump can be treated as a 'Superior Person of Good Character' in the courts: e.g., with favoritism and every possible allowance, like the aristocrats of Old England.

If Trump did regain power and then went on a vengeance tour of debasement, destruction, trial and imprisonment, or outright assassination of his perceived enemies, I expect SCOTUS would be far more surprised by it than the rest of us. But they would still grant him every benefit of the doubt, and they would continue in that vein right up until the inevitable day Trump decided he didn't really need a Supreme Court any more. Better for them if they'd stuck to rational law principles, but moral blindness is its own reward…

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    Rational law? What system is that? I'm aware of civil law systems (which the US does not use) and common law systems (which the US does use).
    – uberhaxed
    Commented Jul 6 at 18:19
  • @uberhaxed: I may be using the wrong terminology (rational law is how I think of it) but it's the movement starting from the 17th or 18th century to model human law after natural (scientific) law: striving for universality, self-consistency, systematic methodology, formulaic application… The general idea was to place law above human subjective assessments. This system is more-or-less ubiquitous in the jurisprudence of modern democratic nations. Commented Jul 6 at 18:57
  • I'm still not sure I'm following, but you can't compare the function of (e.g.) English appellate courts with French appellate courts. They have different purposes so you should check which legal system the US uses before generalizing the purpose of appellate courts. That said, I think this view is a bit anachronistic; humans have had laws for about 6000 years and the legal profession was written about extensively in the Roman Republic, well before it was an empire.
    – uberhaxed
    Commented Jul 6 at 19:19
  • @uberhaxed: True, but humans haven't had modern scientific methods for 6000 years. Early courts relied heavily on the 'wisdom' of the judge whose rulings would be absolute. Jewish and Islamic law improved on that through systems of argumentation and debate about the application of law. Rational law improved on that by spelling out methodological and consistency principles. The UK, France, and the US might have different implementations of rational law, but they are all doing the same kind of thing, which is quite different than you'd find in earlier courts. Commented Jul 6 at 19:24

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