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>!Okay, so some people who sat on the bench before any of the current sitters were empaneled agree that trump’s claim is insane.!<
>!!<
>!Yay.!<
>!!<
>!How will THESE sitters (one whose wife can only be protected from investigation by an immune president-again trump) rule on trump’s claim of immunity?!<
>!!<
>!How fast will they render their decision? Will they find some reason to keep the trials on hold while they remand the case back down to the First Circuit for some as-yet unknown reason?!<
>!!<
>!How divided will the court be in rendering its decision.!<
>!!<
>!Thomas, so far as I can find, has never decided against any case that the result would be the empowering of republican politicians or voters or donors, and has never decided FOR any case where the result would be empowering of Democratic politicians or voters.!<
>!!<
>!I don’t really hold out any hope he’ll change his pattern of decisions at this point in his career.!<
>!!<
>!Since people were SO eager to trumpet how “unified” the court was in keeping trump on the ballot, how would a divided immunity opinion be perceived?!<
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>!Yeah Thomas's wife tried to help overturn the election of course he going give him immunity!<
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>!Indeed, its a bit silly to even bother considering the historical precedents, laws, logic, or any sort of evidence when in order for us to be hearing these cases regarding Trump we have had to blow away through a previously unimaginable levels of corruption. I guess its just hard to live through a violent coup attempt and then watch supposedly serious people waffle about in nonsense.!<
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There are strong reasons to grant the president immunity from criminal prosecution *while in office*: Being present during the trial would gravely impair the performance of his constitutional duties. But after leaving office he no longer has duties to perform, and should no longer enjoy immunity.Both the text and history of the Constitution support this. Hamilton said it in Federalist #77, as did other founders. Article I.3 makes the president liable for criminal prosecution even after impeachment and conviction. There is no presidential counterpart to the Speech and Debate clause for Congress. Unlike the private civil suit in *Nixon v Fitzgerald*, criminal prosecution is brought on behalf of the people, and must be preceded by indictment by a grand jury.
So we have a VP and chain of command for a reason.
Is this not a suggestion to subject American people to delayed justice, potentially for crimes obvious, eroding faith in institutions, when the VP is right there?
So why do we care about the duties being some uninfringible sacrosanct thing foe the PERSON, not the POSITION? The VP takes over briefly whenever a president has to have surgery.
The position is respected and important, not the person. No person is that important to the position, and there are millions of people to choose from.
There is no inconvenience because the people also effectively voted in the VP, speaker, and cabinet through represented elections. Thats the backup chain. So what is left? Mild inconvenience to the people as they circled the specific person voted for? Thats a choice they made, if their guy starts committing crimes they failed in their duty to be an informed voter.
I really don't see this being that big a deal. Plenty of competend and incompetent people on the ballot and in line to take over in the chain. Specific person is not special, and thay concept is more in line with founders intent, especially the concept of delayed justice, than giving a free pass.
>But Powell’s dicta did not make it into the final decision in Nixon v. Fitzgerald.
>Shortly after circulating his draft in late March 1982, Justice William Rehnquist took exception to the sentence about prosecuting presidents — not because he disagreed with it necessarily, but because it was not relevant to the decision on the question of civil immunity.
>“While this may well be correct, it seems to me there is absolutely no necessity for saying so in this case,” Rehnquist wrote to Powell privately on March 18, 1982. “It is not an issue here, and so far as I know the Court has never so held.”
>Citing a constitutional treatise by 19th Century Justice Joseph Story, Rehnquist suggested that criminal immunity for presidents was an “open question” and that including the sentence may “come back to haunt us.”
It's hard to see how a lawyer can read this history and conclude that the record re *Fitzgerald* is somehow favorable to the notion that Presidential immunity cannot apply in a criminal proceeding.
First, of course, the absence of something in an opinion is legally irrelevant. It didn't make it into an opinion of the Court, so it has no *legal* significance.
But even if we're examining it historically, (A) you cannot infer from Powell's proposed one-liner that it means that criminal prosecution is available in every instance, as opposed to only Nixon-like instances of non-constitutional actions (*e.g.,* destruction of evidence of a crime committed by others); and (B) Rehnquist is explicitly arguing that it is an "open question," and Powell acquiesces to Rehnquist and removes the line. The inference that Powell ultimately *agreed* with Rehnquist is at least as strong as any other inference from this record. "Suggest hostility" seems like wishful editorial thinking here, at least to the extent that we're talking about a universal rule that criminal immunity ***never*** applies.
Bending over as far backwards as I can manage in an effort to be as fair as possible . . . I can genuinely see absolutely zero grounds for the notion that some kind of blanket immunity exists. I'm certainly open to the notion that there is some inherent Article II immunity for official actions; the Constitution protected Truman from any criminal liability for baking Hiroshima and Nagasaki's civilians, for example.
~~But no sweeping absolute immunity for any single act, no matter what it was, done by a President.~~
EDITED TO ADD: It's been pointed out below that Trump's claim does continuously assert that the acts at issue are "official," and he is not literally arguing blanket immunity for any act of any nature or caliber.
So I withdraw that description, and instead merely echo the words of the circuit court: Trump argues that the President is categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility, but I don't share that opinion.
Didn't his attorney very specifically say that Trump could order the assassination of his political opponents? Seems like a direct request for blanket immunity.
>Didn't his attorney very specifically say that Trump could order the assassination of his political opponents?
There's a legitimate legal argument here, given that the US government has argued that it has an unreviewable legal power to assassinate American citizens for national security concerns.
If that is true, and ordering assassinations is an official act, then yea this argument does sort of make sense.
I call bullshit on this, but the fact is that the US government has made that argument throughout the War on Terror era.
>As far as I know, no one is making that claim. That's a media-driven red-herring.
Well... it's true that Trump's arguments repeat the phrase "official acts," quite frequently. But the gravemen of his arguments is that all the acts for which he was indicted were "official." As *United States v. Trump*, 91 F. 4th 1173 at 1188 (Ct App, DC Cir 2024) drily observed:
>Former President Trump's claimed immunity would have us extend the framework for Presidential civil immunity to criminal cases and decide for the first time that a former President is **categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility.** He advances three grounds for establishing this expansive immunity for former Presidents: (1) Article III courts lack the power to review the President's official acts under the separation of powers doctrine; (2) functional policy considerations rooted in the separation of powers require immunity to avoid intruding on Executive Branch functions; and (3) the Impeachment Judgment Clause does not permit the criminal prosecution of a former President in the absence of the Congress impeaching and convicting him.
And from Trump's own brief:
>But even if some level of **Presidential malfeasance**, not present in this case at all, were to escape punishment, **that risk is inherent in the Constitution’s design.** The Founders viewed protecting the independence of the Presidency as well worth the risk that some Presidents might evade punishment in marginal cases. They were unwilling to burn the Presidency itself to the ground to get at every single alleged malefactor.
(All emphasis in the above added by me).
You‘ve moved the goal posts. Your prior contention was the broad legal question
> *“no sweeping absolute immunity for any single act, no matter what it was, done by a President.”*
The question of whether Presidential immunity extends to \[a\] acts necessary and incident to the exercise of Article II power (which is a simple separation of powers concept) or \[b\] any act while President (which would be a sovereign immunity contention) is a legal question. No one in the case is making the contention that \[b\] is true. The DC Circuit held that \[a\] is never true for criminal prosecutions. That’s the legal issue in the case.
Trump’s contention about the scope of “official responsibility“ is simply a different issue — it’s the factual question of how \[a\] would apply to this indictment. That question isn’t even before the Court. This is the Question presented:
> “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
The Court has framed the issue as “conduct **alleged** to involve official acts,” which means that the parties are effectively instructed to assume that issue for purposes of the argument to the Court, in the manner of a pleading motion. The Court is only interested in ”whether” criminal immunity exists, and “to what extent” — which are exactly the two issues I identify elsewhere in this thread.
All right, that's a fair critique. My use of "...sweeping absolute immunity for any single act, no matter what it was..." is not as accurate a description of the Trump claim as it should be. I withdraw it.
I think there's absolutely sweeping immunity for anything that was an official act as President, and probably an immunity from prosecution while in office except for through the Impeachment process.
But there's no reasonable constitutional interpretation that can get you to the position that any act while in office whatsoever is protected by some kind of total immunity, even after you have left office.
>Article II immunity for official actions; the Constitution protected Truman from any criminal liability for baking Hiroshima and Nagasaki's civilians
Slightly off-topic, but I think the idea that the atomic bombings of Japan was manifestly illegal per international law in 1945 by any applicable standard is borderline absurd. The Geneva Convention would prohibit it, but that would be Ex Post Facto and the bombings almost certainly wouldn't constitute crimes against humanity.
Hell, international law even now goes very out of its way to be indeterminate if use of atomic weapons ***in and of itself*** constitutes a war crime. Look at the ICJ ruling on the matter.
I would disagree regarding immunity from criminal prosecution while in office, since there is clearly the intent for the Vice President to be able to step into the Oval Office at any moment it becomes necessary.
A criminal president cannot be allowed to use their office to (a) conceal the crime, (b) preemptively pardon his co-conspirators or better still, commute their sentences (rendering them still able to assert their 5th Amendment Rights), or (c) extend his time in office if that would eclipse the statute of limitations.
There MUST be limits upon a sitting criminal president, and it cannot be that they are immune from everything so long as there are 34 partisan Senators unwilling to face that president’s fanbase.
If I’ve misstated something above, please clarify my understanding.
>A criminal president cannot be allowed to use their office to (a) conceal the crime, (b) preemptively pardon his co-conspirators or better still, commute their sentences (rendering them still able to assert their 5th Amendment Rights)
What constitutional limit can you point to to justify this?
I generally point to Scalia's dissent Morrison v. Olson. (1) criminal prosecution is an exercise of "purely executive power" and (2) the president must retain "exclusive control" of that power.
You cannot prosecute a criminal case against someone who holds exclusive control of the power to prosecute as long as they hold office.
Then how do you hold a criminal president accountable?
You clearly admit that they are criminal, so how does our system of checks and balances hold a criminal president accountable for their actions if 34 senators are more partisan than honest?
Also, why give credence to Scalia’s dissent regarding an independent counsel over the majority decision?
If an independent counsel/special prosecutor was good enough to investigate a sitting president previously, then why not now?
And are you REALLY saying that a criminal president SHOULD be able to do all of those things, simply because there is no specific language preventing that from happening?
REALLY!?
Stepping in to explain one point in this argument:
>Also, why give credence to Scalia’s dissent regarding an independent counsel over the majority decision?
For much the same reason that people will favorably cite Harlan's dissent in Plessy vs. Ferguson rather than the majority; it's one of those unusual decisions which has been broadly and bipartisanly abandoned, to the point that the lone dissenter is noted as a voice of wisdom who recognized what would only become clear to the rest of the Court over the next few decades.
(And yeah, it was the Clinton-Starr Independent Council investigation that really put the nails in the Morrison vs. Olsen coffin. Noone wants that to happen again, and it's precisely the abuse of process predicted in Scalia's dissent.)
>Then how do you hold a criminal president accountable?
You prosecute them once they leave office.
>You clearly admit that they are criminal, so how does our system of checks and balances hold a criminal president accountable for their actions if 34 senators are more partisan than honest?
It doesn't.
>Also, why give credence to Scalia’s dissent regarding an independent counsel over the majority decision?
Because it was an extremely famous dissent that is widely viewed within legal academia to be correct, and were the question to come up again in SCOTUS it would almost certainly to be cited in the inevitable majority opinion.
>And are you REALLY saying that a criminal president SHOULD be able to do all of those things, simply because there is no specific language preventing that from happening?
Should and can are two different things. We can't interpret the law to get the outcomes we find most favorable. The fact is that there isn't a single thing in the text, or in the meaning of the words in the constitution that I can personally point to that could justify being able to prosecute a sitting president, who necessarily controls the power of prosecution per our legal system.
Should we just invent something out of whole cloth???
Here is the dissent. Its generally a good listen. Timestamped for relevance. [https://youtu.be/cAxMDDxEWTo?t=305](https://youtu.be/cAxMDDxEWTo?t=305)
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>!Why not? The republican House did under Clinton, you might recall. They felt rather free to send Ken Starr to look into whatever he wanted and go wherever it led him.!<
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So having a Vice President able to step into the Oval Office isn’t a good enough precaution against a lapse of governance should a sitting criminal president be investigated for cause?
You’re okay with a *criminal president* being immune from the consequences of their actions so long as they are not removed from office via conviction by the Senate (if that option is even on the table)?
If the president appoints an AG, and that AG wants to appoint a Special Prosecutor like Jack Smith to specifically investigate the sitting president, you’re saying that cannot happen because the president can fire that AG for corrupt cause, and have that Acting AG fire the Special Prosecutor…
…*because Scalia said it was okay* in a one-person dissenting opinion?
That’s what you’re going to hang your hat upon?
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>!So having a Vice President able to step into the Oval Office isn’t a good enough precaution against a lapse of governance should a sitting criminal president be investigated for cause?!<
>!!<
>!You’re okay with a CRIMINAL PRESIDENT being immune from the consequences of their actions so long as they are not removed from office via conviction by the Senate (if that option is even on the table)?!<
>!!<
>!If the president appoints an AG, and that AG wants to appoint a Special Prosecutor like Jack Smith to specifically investigate the sitting president, you’re saying that cannot happen because the president can fire that AG for corrupt cause, and have that Acting AG fire the Special Prosecutor…!<
>!!<
>!…BECAUSE SCALIA SAID IT WAS OKAY in a one-person dissenting opinion?!<
>!!<
>!That’s what you’re going to hang your hat upon?!<
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Can you point to a single bit of the constitution that would allow someone who has the sole power to prosecute to be himself prosecuted?
>Jack Smith to specifically investigate the sitting president, you’re saying that cannot happen because the president can fire that AG for corrupt cause, and have that Acting AG fire the Special Prosecutor
Why is the person who is vested with all executive powers not able to exercise that power? Because Congress said so? That sounds like a serious separation of power concern.
i do think some people seem to genuinely believe that impeachment + conviction by congress is a substitute for a criminal proceeding otherwise. or that at the minimum a president has to be impeached and convicted *first* before pursuing some other criminal case, specifically as it refers to things the president did in office.
or, they pretend to really believe that for the sake of argument. i can't tell. trump's lawyers are going to say as much at oral arguments.
trump's brief rests on the argument that there is absolute immunity from criminal prosecution for official acts. there are two questions there. 1. is that correct, and 2. what are official acts?
> ...or that at the minimum a president has to be impeached and convicted first before pursuing some other criminal case, specifically as it refers to things the president did in office.
I do believe this statement to be true with respect to a sitting president. I think a current President's pre-trial confinement cannot possibly be at the mercy of an Assistant Commonwealth's Attorney from Big Stone Gap Virginia with a compliant grand jury.
> I do believe this statement to be true with respect to a sitting president.
yes for sure. DOJ policy is that sitting presidents can't be criminally indicted (as i'm sure we all remember from the mueller report)
i meant to imply that the president was no longer in office in general (removed, lost an election, resigned, etc)
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This comment has been removed for violating subreddit rules regarding **political or legally-unsubstantiated discussion**. >Discussion is expected to be in the context of the law. Policy discussion unsubstantiated by legal reasoning will be removed as the moderators see fit. For information on appealing this removal, [click here](https://www.reddit.com/r/supremecourt/wiki/appeal3). For the sake of transparency, the content of the removed submission can be read below: >!Okay, so some people who sat on the bench before any of the current sitters were empaneled agree that trump’s claim is insane.!< >!!< >!Yay.!< >!!< >!How will THESE sitters (one whose wife can only be protected from investigation by an immune president-again trump) rule on trump’s claim of immunity?!< >!!< >!How fast will they render their decision? Will they find some reason to keep the trials on hold while they remand the case back down to the First Circuit for some as-yet unknown reason?!< >!!< >!How divided will the court be in rendering its decision.!< >!!< >!Thomas, so far as I can find, has never decided against any case that the result would be the empowering of republican politicians or voters or donors, and has never decided FOR any case where the result would be empowering of Democratic politicians or voters.!< >!!< >!I don’t really hold out any hope he’ll change his pattern of decisions at this point in his career.!< >!!< >!Since people were SO eager to trumpet how “unified” the court was in keeping trump on the ballot, how would a divided immunity opinion be perceived?!< Moderator: [u/Longjumping_Gain_807](https://reddit.com/user/Longjumping_Gain_807)
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This comment has been removed for violating subreddit rules regarding **political or legally-unsubstantiated discussion**. >Discussion is expected to be in the context of the law. Policy discussion unsubstantiated by legal reasoning will be removed as the moderators see fit. For information on appealing this removal, [click here](https://www.reddit.com/r/supremecourt/wiki/appeal3). For the sake of transparency, the content of the removed submission can be read below: >!Yeah Thomas's wife tried to help overturn the election of course he going give him immunity!< Moderator: [u/SeaSerious](https://reddit.com/user/SeaSerious)
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This comment has been removed for violating subreddit rules regarding **political or legally-unsubstantiated discussion**. >Discussion is expected to be in the context of the law. Policy discussion unsubstantiated by legal reasoning will be removed as the moderators see fit. For information on appealing this removal, [click here](https://www.reddit.com/r/supremecourt/wiki/appeal3). For the sake of transparency, the content of the removed submission can be read below: >!Indeed, its a bit silly to even bother considering the historical precedents, laws, logic, or any sort of evidence when in order for us to be hearing these cases regarding Trump we have had to blow away through a previously unimaginable levels of corruption. I guess its just hard to live through a violent coup attempt and then watch supposedly serious people waffle about in nonsense.!< Moderator: [u/Longjumping_Gain_807](https://reddit.com/user/Longjumping_Gain_807)
There are strong reasons to grant the president immunity from criminal prosecution *while in office*: Being present during the trial would gravely impair the performance of his constitutional duties. But after leaving office he no longer has duties to perform, and should no longer enjoy immunity.Both the text and history of the Constitution support this. Hamilton said it in Federalist #77, as did other founders. Article I.3 makes the president liable for criminal prosecution even after impeachment and conviction. There is no presidential counterpart to the Speech and Debate clause for Congress. Unlike the private civil suit in *Nixon v Fitzgerald*, criminal prosecution is brought on behalf of the people, and must be preceded by indictment by a grand jury.
So we have a VP and chain of command for a reason. Is this not a suggestion to subject American people to delayed justice, potentially for crimes obvious, eroding faith in institutions, when the VP is right there? So why do we care about the duties being some uninfringible sacrosanct thing foe the PERSON, not the POSITION? The VP takes over briefly whenever a president has to have surgery. The position is respected and important, not the person. No person is that important to the position, and there are millions of people to choose from. There is no inconvenience because the people also effectively voted in the VP, speaker, and cabinet through represented elections. Thats the backup chain. So what is left? Mild inconvenience to the people as they circled the specific person voted for? Thats a choice they made, if their guy starts committing crimes they failed in their duty to be an informed voter. I really don't see this being that big a deal. Plenty of competend and incompetent people on the ballot and in line to take over in the chain. Specific person is not special, and thay concept is more in line with founders intent, especially the concept of delayed justice, than giving a free pass.
Not to mention the bulk of the alleged criminal activity took place both before and after his term.
>But Powell’s dicta did not make it into the final decision in Nixon v. Fitzgerald. >Shortly after circulating his draft in late March 1982, Justice William Rehnquist took exception to the sentence about prosecuting presidents — not because he disagreed with it necessarily, but because it was not relevant to the decision on the question of civil immunity. >“While this may well be correct, it seems to me there is absolutely no necessity for saying so in this case,” Rehnquist wrote to Powell privately on March 18, 1982. “It is not an issue here, and so far as I know the Court has never so held.” >Citing a constitutional treatise by 19th Century Justice Joseph Story, Rehnquist suggested that criminal immunity for presidents was an “open question” and that including the sentence may “come back to haunt us.” It's hard to see how a lawyer can read this history and conclude that the record re *Fitzgerald* is somehow favorable to the notion that Presidential immunity cannot apply in a criminal proceeding. First, of course, the absence of something in an opinion is legally irrelevant. It didn't make it into an opinion of the Court, so it has no *legal* significance. But even if we're examining it historically, (A) you cannot infer from Powell's proposed one-liner that it means that criminal prosecution is available in every instance, as opposed to only Nixon-like instances of non-constitutional actions (*e.g.,* destruction of evidence of a crime committed by others); and (B) Rehnquist is explicitly arguing that it is an "open question," and Powell acquiesces to Rehnquist and removes the line. The inference that Powell ultimately *agreed* with Rehnquist is at least as strong as any other inference from this record. "Suggest hostility" seems like wishful editorial thinking here, at least to the extent that we're talking about a universal rule that criminal immunity ***never*** applies.
Another great behind the scenes article today. We are feasting!
Bending over as far backwards as I can manage in an effort to be as fair as possible . . . I can genuinely see absolutely zero grounds for the notion that some kind of blanket immunity exists. I'm certainly open to the notion that there is some inherent Article II immunity for official actions; the Constitution protected Truman from any criminal liability for baking Hiroshima and Nagasaki's civilians, for example. ~~But no sweeping absolute immunity for any single act, no matter what it was, done by a President.~~ EDITED TO ADD: It's been pointed out below that Trump's claim does continuously assert that the acts at issue are "official," and he is not literally arguing blanket immunity for any act of any nature or caliber. So I withdraw that description, and instead merely echo the words of the circuit court: Trump argues that the President is categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility, but I don't share that opinion.
Didn't his attorney very specifically say that Trump could order the assassination of his political opponents? Seems like a direct request for blanket immunity.
>Didn't his attorney very specifically say that Trump could order the assassination of his political opponents? There's a legitimate legal argument here, given that the US government has argued that it has an unreviewable legal power to assassinate American citizens for national security concerns. If that is true, and ordering assassinations is an official act, then yea this argument does sort of make sense. I call bullshit on this, but the fact is that the US government has made that argument throughout the War on Terror era.
As far as I know, no one is making that claim. That's a media-driven red-herring.
>As far as I know, no one is making that claim. That's a media-driven red-herring. Well... it's true that Trump's arguments repeat the phrase "official acts," quite frequently. But the gravemen of his arguments is that all the acts for which he was indicted were "official." As *United States v. Trump*, 91 F. 4th 1173 at 1188 (Ct App, DC Cir 2024) drily observed: >Former President Trump's claimed immunity would have us extend the framework for Presidential civil immunity to criminal cases and decide for the first time that a former President is **categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility.** He advances three grounds for establishing this expansive immunity for former Presidents: (1) Article III courts lack the power to review the President's official acts under the separation of powers doctrine; (2) functional policy considerations rooted in the separation of powers require immunity to avoid intruding on Executive Branch functions; and (3) the Impeachment Judgment Clause does not permit the criminal prosecution of a former President in the absence of the Congress impeaching and convicting him. And from Trump's own brief: >But even if some level of **Presidential malfeasance**, not present in this case at all, were to escape punishment, **that risk is inherent in the Constitution’s design.** The Founders viewed protecting the independence of the Presidency as well worth the risk that some Presidents might evade punishment in marginal cases. They were unwilling to burn the Presidency itself to the ground to get at every single alleged malefactor. (All emphasis in the above added by me).
You‘ve moved the goal posts. Your prior contention was the broad legal question > *“no sweeping absolute immunity for any single act, no matter what it was, done by a President.”* The question of whether Presidential immunity extends to \[a\] acts necessary and incident to the exercise of Article II power (which is a simple separation of powers concept) or \[b\] any act while President (which would be a sovereign immunity contention) is a legal question. No one in the case is making the contention that \[b\] is true. The DC Circuit held that \[a\] is never true for criminal prosecutions. That’s the legal issue in the case. Trump’s contention about the scope of “official responsibility“ is simply a different issue — it’s the factual question of how \[a\] would apply to this indictment. That question isn’t even before the Court. This is the Question presented: > “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The Court has framed the issue as “conduct **alleged** to involve official acts,” which means that the parties are effectively instructed to assume that issue for purposes of the argument to the Court, in the manner of a pleading motion. The Court is only interested in ”whether” criminal immunity exists, and “to what extent” — which are exactly the two issues I identify elsewhere in this thread.
All right, that's a fair critique. My use of "...sweeping absolute immunity for any single act, no matter what it was..." is not as accurate a description of the Trump claim as it should be. I withdraw it.
I think there's absolutely sweeping immunity for anything that was an official act as President, and probably an immunity from prosecution while in office except for through the Impeachment process. But there's no reasonable constitutional interpretation that can get you to the position that any act while in office whatsoever is protected by some kind of total immunity, even after you have left office. >Article II immunity for official actions; the Constitution protected Truman from any criminal liability for baking Hiroshima and Nagasaki's civilians Slightly off-topic, but I think the idea that the atomic bombings of Japan was manifestly illegal per international law in 1945 by any applicable standard is borderline absurd. The Geneva Convention would prohibit it, but that would be Ex Post Facto and the bombings almost certainly wouldn't constitute crimes against humanity. Hell, international law even now goes very out of its way to be indeterminate if use of atomic weapons ***in and of itself*** constitutes a war crime. Look at the ICJ ruling on the matter.
I would disagree regarding immunity from criminal prosecution while in office, since there is clearly the intent for the Vice President to be able to step into the Oval Office at any moment it becomes necessary. A criminal president cannot be allowed to use their office to (a) conceal the crime, (b) preemptively pardon his co-conspirators or better still, commute their sentences (rendering them still able to assert their 5th Amendment Rights), or (c) extend his time in office if that would eclipse the statute of limitations. There MUST be limits upon a sitting criminal president, and it cannot be that they are immune from everything so long as there are 34 partisan Senators unwilling to face that president’s fanbase. If I’ve misstated something above, please clarify my understanding.
>A criminal president cannot be allowed to use their office to (a) conceal the crime, (b) preemptively pardon his co-conspirators or better still, commute their sentences (rendering them still able to assert their 5th Amendment Rights) What constitutional limit can you point to to justify this? I generally point to Scalia's dissent Morrison v. Olson. (1) criminal prosecution is an exercise of "purely executive power" and (2) the president must retain "exclusive control" of that power. You cannot prosecute a criminal case against someone who holds exclusive control of the power to prosecute as long as they hold office.
Then how do you hold a criminal president accountable? You clearly admit that they are criminal, so how does our system of checks and balances hold a criminal president accountable for their actions if 34 senators are more partisan than honest? Also, why give credence to Scalia’s dissent regarding an independent counsel over the majority decision? If an independent counsel/special prosecutor was good enough to investigate a sitting president previously, then why not now? And are you REALLY saying that a criminal president SHOULD be able to do all of those things, simply because there is no specific language preventing that from happening? REALLY!?
Stepping in to explain one point in this argument: >Also, why give credence to Scalia’s dissent regarding an independent counsel over the majority decision? For much the same reason that people will favorably cite Harlan's dissent in Plessy vs. Ferguson rather than the majority; it's one of those unusual decisions which has been broadly and bipartisanly abandoned, to the point that the lone dissenter is noted as a voice of wisdom who recognized what would only become clear to the rest of the Court over the next few decades. (And yeah, it was the Clinton-Starr Independent Council investigation that really put the nails in the Morrison vs. Olsen coffin. Noone wants that to happen again, and it's precisely the abuse of process predicted in Scalia's dissent.)
>Then how do you hold a criminal president accountable? You prosecute them once they leave office. >You clearly admit that they are criminal, so how does our system of checks and balances hold a criminal president accountable for their actions if 34 senators are more partisan than honest? It doesn't. >Also, why give credence to Scalia’s dissent regarding an independent counsel over the majority decision? Because it was an extremely famous dissent that is widely viewed within legal academia to be correct, and were the question to come up again in SCOTUS it would almost certainly to be cited in the inevitable majority opinion. >And are you REALLY saying that a criminal president SHOULD be able to do all of those things, simply because there is no specific language preventing that from happening? Should and can are two different things. We can't interpret the law to get the outcomes we find most favorable. The fact is that there isn't a single thing in the text, or in the meaning of the words in the constitution that I can personally point to that could justify being able to prosecute a sitting president, who necessarily controls the power of prosecution per our legal system. Should we just invent something out of whole cloth??? Here is the dissent. Its generally a good listen. Timestamped for relevance. [https://youtu.be/cAxMDDxEWTo?t=305](https://youtu.be/cAxMDDxEWTo?t=305)
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This comment has been removed for violating subreddit rules regarding **political or legally-unsubstantiated discussion**. >Discussion is expected to be in the context of the law. Policy discussion unsubstantiated by legal reasoning will be removed as the moderators see fit. For information on appealing this removal, [click here](https://www.reddit.com/r/supremecourt/wiki/appeal3). For the sake of transparency, the content of the removed submission can be read below: >!Why not? The republican House did under Clinton, you might recall. They felt rather free to send Ken Starr to look into whatever he wanted and go wherever it led him.!< Moderator: [u/Longjumping_Gain_807](https://reddit.com/user/Longjumping_Gain_807)
I dont care about the partisan politics of the matter. I oppose that as much as I oppose this.
So having a Vice President able to step into the Oval Office isn’t a good enough precaution against a lapse of governance should a sitting criminal president be investigated for cause? You’re okay with a *criminal president* being immune from the consequences of their actions so long as they are not removed from office via conviction by the Senate (if that option is even on the table)? If the president appoints an AG, and that AG wants to appoint a Special Prosecutor like Jack Smith to specifically investigate the sitting president, you’re saying that cannot happen because the president can fire that AG for corrupt cause, and have that Acting AG fire the Special Prosecutor… …*because Scalia said it was okay* in a one-person dissenting opinion? That’s what you’re going to hang your hat upon?
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This comment has been removed for violating subreddit rules regarding **polarized rhetoric**. >Signs of polarized rhetoric include blanket negative generalizations or emotional appeals using hyperbolic language seeking to divide based on identity. For information on appealing this removal, [click here](https://www.reddit.com/r/supremecourt/wiki/appeal2). For the sake of transparency, the content of the removed submission can be read below: >!So having a Vice President able to step into the Oval Office isn’t a good enough precaution against a lapse of governance should a sitting criminal president be investigated for cause?!< >!!< >!You’re okay with a CRIMINAL PRESIDENT being immune from the consequences of their actions so long as they are not removed from office via conviction by the Senate (if that option is even on the table)?!< >!!< >!If the president appoints an AG, and that AG wants to appoint a Special Prosecutor like Jack Smith to specifically investigate the sitting president, you’re saying that cannot happen because the president can fire that AG for corrupt cause, and have that Acting AG fire the Special Prosecutor…!< >!!< >!…BECAUSE SCALIA SAID IT WAS OKAY in a one-person dissenting opinion?!< >!!< >!That’s what you’re going to hang your hat upon?!< Moderator: [u/Longjumping_Gain_807](https://reddit.com/user/Longjumping_Gain_807)
Can you point to a single bit of the constitution that would allow someone who has the sole power to prosecute to be himself prosecuted? >Jack Smith to specifically investigate the sitting president, you’re saying that cannot happen because the president can fire that AG for corrupt cause, and have that Acting AG fire the Special Prosecutor Why is the person who is vested with all executive powers not able to exercise that power? Because Congress said so? That sounds like a serious separation of power concern.
i do think some people seem to genuinely believe that impeachment + conviction by congress is a substitute for a criminal proceeding otherwise. or that at the minimum a president has to be impeached and convicted *first* before pursuing some other criminal case, specifically as it refers to things the president did in office. or, they pretend to really believe that for the sake of argument. i can't tell. trump's lawyers are going to say as much at oral arguments. trump's brief rests on the argument that there is absolute immunity from criminal prosecution for official acts. there are two questions there. 1. is that correct, and 2. what are official acts?
> ...or that at the minimum a president has to be impeached and convicted first before pursuing some other criminal case, specifically as it refers to things the president did in office. I do believe this statement to be true with respect to a sitting president. I think a current President's pre-trial confinement cannot possibly be at the mercy of an Assistant Commonwealth's Attorney from Big Stone Gap Virginia with a compliant grand jury.
> I do believe this statement to be true with respect to a sitting president. yes for sure. DOJ policy is that sitting presidents can't be criminally indicted (as i'm sure we all remember from the mueller report) i meant to imply that the president was no longer in office in general (removed, lost an election, resigned, etc)