Dang…that’s a really good analysis of the arguments.
Justice Brett Kavanaugh appeared sympathetic to the former president’s argument that criminal statutes do not apply to the president unless they say so specifically. He told Dreeben that it’s a “serious constitutional question whether a criminal statute can apply to the president’s criminal acts.”
Kavanaugh – who served as a deputy to Ken Starr during his investigation of then-President Bill Clinton – cited the Supreme Court’s 1988 decision in Morrison v. Olson, upholding the constitutionality of the independent counsel statute, as “one of the Court’s biggest mistakes” because it “hampered” presidential administrations. When former presidents are subjected to prosecution, Kavanaugh said, “history tells us it’s not going to stop.”
I don’t have anything better to do (yay for being off work today), so I want to dig into this because I don’t really see the problem. Shouldn’t presidential administrations being hampered in criminal activity?
Morrison v. Olson basically upheld the constitutionality of the Independent Counsel Act, which was used to appoint Alexia Morrison to investigate and prosecute any federal violations Theodore Olson, then Assistant Attorney General, had committed during an investigation of the EPA. Upholding it meant that Congress could appoint an independent counsel “to investigate and prosecute crimes by high-ranking members of the executive branch.”[1]. In other words, the judicial branch, via the Attorney General, could appoint someone with executive power to investigate and prosecute executive members.
In short, Kavanaugh thinks this ruling violates the separation of powers and, as a result, has reigned in the range of actions presidential administrations may have taken in the past. To be fair to him, the Independent Counsel act was used to prosecute government officials in the Watergate Scandal, the Iran-Contra affairs, and the Whitewater scandal[2]. So, it’s been used, and Kavanaugh’s concern is legitimate.
And that concern is relevant to Trump’s immunity cases because, if they say that Trump isn’t immune from his allegedly criminal acts, then it further constrains presidential administrations. The reductio ab absurdum argument is that of course presidents should be held accountable for their criminal actions. Duh! The more intellectually honest consideration is that, while president’s should indeed be held accountable for their criminal actions, allowing Trump to be held accountable would encourage investigating and prosecuting the criminal actions of future presidents as yet another tool for political dominance.
Fundamentally, I think Kavanaugh’s concern is less about Trump’s accountability specifically than the functioning of American democracy generally. Having worked through this myself, I better understand where he’s coming from, but…Trump needs to face consequences for what he did as president. IMO, if American democracy can’t function smoothly if it’s highest political offices can’t engage in criminal behavior, then American democracy shouldn’t function smoothly. Better a dysfunctional democracy with accountability than it’s illusion without.
(Also, the footnotes below are so cool! Definitely using them more often!)
This is going to be a very important ruling that many people are going to turn partisan.
I believe it was Kavanaugh who asked about Obama and drones. That was a really good question.
I don’t like the term immunity but I get it. We can’t go after the president for everything they do as it will turn into a clusterfuck really fast.
This is one of those days I am glad I am not a member of SCOTUS or someone who has to deal with trying to figure this mess out.
ETA: To be clear this isn’t as much about Trump as it is about the role of President. This could be a huge and impacting decision.
I dunno, the way I see it we put people in power with our vote. The President is our employee in a way, and while they are privy to classified details and can’t be completely transparent about everything, the idea that a President has immunity from crimes is a very dangerous road.
If the President has to take action to safeguard the nation, that’s one thing. If they’re just using the office to enrich themselves and their buddies or rig an election in their favor, we shouldn’t be ok with that.
From the hearing yesterday it sounds like Trump’s own attorneys concede that the immunity is not absolute. So where is the line drawn? Can Biden put a hit out on Trump and be immune from facing consequences? Can an outgoing president preemptively pardon themselves from all wrongdoing? Can a sitting President give themselves an extra term in office, or attempt to fix an election in their favor? If so, then how do we hold them accountable to do their job and not just benefit themselves while they’re there? How do we know future candidates aren’t just running for office for the immunity?
These concerns were also raised in the hearings yesterday but I did not hear any satisfactory answer.
If the immunity is not absolute then what is the limit?
and the answer won’t come from this decision. This will be a narrow decision I suspect. The court will keep it very focused for the reasons you listed above
It’s not really surprising how each justice will vote. They’re not good at masking their stance based on the questions they ask.
You won’t know until they vote and give their written opinion. The devil is in the details.
I mean obvi we won’t know until we know but it’s not like they’ve been difficult to read at any stage of this hearing and other past cases they’ve taken.
Well it is rare to hear such a legal expert weight that he can read the minds of the courts. Based on the prior cases, they have been all over the place. The court isn’t evenly divided on each case.
https://www.cnn.com/2024/04/25/politics/takeaways-trump-immunity-supreme-court/index.html
I like how different headlines word it differently.
This is they’ll reject sweeping immunity.
This will be an interesting case for future and past presidents. Could Obama be charged with murder killing us citizens over seas?
From what I’m hearing, it’s very likely that SCOTUS will uphold that actions that are part of official duties will have presidential immunity, but other activities will not.
For example, let’s say that terrorists were in a building in America, and Trump authorized a strike on that building, killing many civilians (just as an example). That would be an official action, qualifying him from immunity. But, if he does something like bash his wife’s head in, even as president, he does not have immunity from that.
It’s my understanding that this is the traditional view of the laws in question, I am not sure that Trump will be able to get that immunity expanded like he wants.
I think this will be a narrow focus on specific events. They don’t want a broad rule that will keep coming up in court.
I admit this is a tough one, and no matter what happens, people will scream politics while ignoring how difficult this question is to answer.
People often scream politics when the answer is the correct one. Roe Vs Wade is a good example where it should have been ruled the way it had been ruled. I am pro-choice but the courts overstepped when creating roe.
Congress has the power to make laws, not the courts.