- However bad you think it is,
it's worse.
Remember when Trump's lawyers argued
that he could SEAL Team six his political rivals
and we all laughed because
that's a preposterous thing for anyone to argue
and absolutely no serious person could
possibly believe that the Constitution
or the laws of this country
would allow that to be the rule?
Well, the Supreme Court just said,
" Hold my beer while I assassinate my political rivals."
- [Sonia] The President is entitled for total personal gain
to use the trappings of his office.
That's what you're trying to get us to hold.
- Yes, the Supreme Court has effectively
given law-breaking presidents,
and we're not singling any one law-breaking
president out or anything,
could be any felonious president,
almost absolute immunity from criminal prosecution.
And where the Court did not grant outright absolute
immunity, it gave presumptive immunity
and procedural protections that might
as well have been absolute immunity.
And while unofficial acts
of the President still received no immunity,
the crap cherry on top of this crap sundae
is that even though a president now
has immunity from criminal prosecution
for official acts as president,
a prosecutor cannot even use official acts
as evidence in a prosecution over unofficial acts,
which makes prosecution of some unofficial acts
virtually impossible.
Whether you are a Republican or a Democrat,
this is a terrible decision for democracy,
possibly a top five worst Supreme Court
decision of all time.
Happy July 4th, everyone!
But just how bad is it?
Well, don't take my word for it.
Justice Sotomayor says,
" 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 interest of the nation.
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 the military coup to hold onto 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 as be as bold
and fearless as we would like him to be.
That is the majority's message today."
Justice Sotomayor concludes
that the opinion marked a sea change
in the relationship between the people and the President.
" In every use of official power,
the President is now a king above the law."
But how did we get here?
Well, until now, executive immunity
was a court created doctrine
that shields Presidents from most civil lawsuits
involving conduct that occurred
during their presidential terms.
There's no explicit constitutional text
granting the president immunity,
but in Nixon v Fitzgerald,
the Supreme Court ruled that
a president is entitled
to absolute immunity from legal liability
for civil damages based on his official acts,
including acts on the outer perimeter of his duties.
The Court defined a President's official duties
quite broadly to prevent future presidents
from being sued for "virtually every allegation
that an action was unlawful
or was taken for a forbidden purpose."
The Court explained that it was "settled law
that the separation of powers doctrine
does not bar every exercise of jurisdiction
over the President of the United States."
To determine whether a particular type
of suit against a President
or a former President could be heard,
a court must balance the constitutional weight
of the interest to be served against the dangers
of intrusion on the authority
and functions of the Executive Branch.
Indeed in Clinton v Jones,
the Supreme Court found that under that rubric,
the President does not have immunity from civil suits
for conduct before they became President.
So until now, virtually every lawyer
and judge in the country assumed
that while executive immunity
would shield civil lawsuits
because the President could be sued
by almost anyone in the country over almost anything,
that criminal prosecutions would be different.
Why? Because it's way more important
that a president be bound by criminal law
and not commit heinous criminal acts
even in service of their duties.
Plus there are way more safeguards against criminal
prosecution than civil suits.
But Trump moved to dismiss his DC
prosecution on immunity grounds.
He lost to the trial court and appealed the decision.
Judge Tanya Chutkan stayed the criminal proceedings
pending the outcome of the appeal.
The DC Circuit upheld the lower court's ruling,
" The former President Trump has become citizen Trump
with all the defenses of any other criminal defendant,
but any executive immunity
that may have protected him while he served
as President no longer protects him
against this prosecution."
The Circuit Court ruled that Presidents
are not above the law.
" The President has a constitutionally mandated duty
to take care that the laws be faithfully executed.
As part of this duty, the President is responsible
for investigating and prosecuting criminal violations.
It would be a striking paradox if the President
who alone is vested with the constitutional duty
to take care that the laws be faithfully executed
were the sole officer capable of defying those laws
with impunity."
The Circuit Court's decision was widely praised
as the well-constructed opinion
that came to the only logical conclusion,
but then it arrived in the Supreme Court.
(playful music)
The top line ruling from the majority
of the Supreme Court is this,
Presidents cannot be indicted
based on conduct for which they're immune from prosecution.
Based on the standard that this opinion creates,
which we'll talk about in a second,
Justice Roberts writing
for the six-Justice majority,
kicked things back down to the trial court,
" On remand, the district court must
carefully analyze the indictment's
remaining allegations to determine
whether they too involve conduct
for which a President must be
immune from prosecution.
And the parties and the district court must ensure
that sufficient allegations support the indictment's
charges without such conduct."
And the opinion starts with the premise
that presidents have lots of power.
Powers they wield exclusively
and do not share with Congress.
The court describes the President's core powers
as taking care that the laws are faithfully executed,
commanding the military and dismissing officers
he has appointed and pardoning people
who have committed crimes.
So the court created three buckets,
core official acts, non-core official acts
and unofficial acts.
But as you'll see, there's very little difference
between the official acts
and very little will qualify as an unofficial act.
And the court states,
" We conclude that under our constitutional structure
of separated powers,
the nature of presidential power requires
that a former President have some immunity
from criminal prosecution for official acts
during his tenure in office.
At least with respect to the President's exercise
of his core constitutional powers,
this immunity must be absolute.
As for his remaining official acts,
he's also entitled to immunity.
At the current stage of proceedings
in this case, however,
we need not and do not decide whether
that immunity must be absolute
or instead whether a presumptive immunity is sufficient."
So with respect to the exercise of core powers,
the President is apparently absolutely immune
from any criminal prosecution related to using those powers.
And the court goes on to note that
in cases involving Richard Nixon and Aaron Burr,
judges recognized that the President
has a presumptive privilege
to withhold certain papers and communications.
Though oddly in both of those cases,
Presidents Nixon and Jefferson
were compelled to produce records and recordings
because of the public interest in those records
was strong enough to overcome the presumptive privilege.
However, the court sees the Trump case differently
because Trump is the subject
of a criminal prosecution,
" Criminally prosecuting a President
for unofficial conduct undoubtedly poses
a far greater threat of intrusion on the authority
and functions of the Executive Branch
than simply seeking evidence in his possession
as in Burr and Nixon.
The danger is akin to indeed greater than
what led us to recognize absolute immunity
from civil damages liability
that the President would be chilled
from taking the bold and unhesitating action
required of an independent executive."
So the argument goes,
if a President could face criminal
prosecution for his official acts,
including communications with his aides,
he might be unable to perform his official duties
because he fears prosecution.
So the court concludes,
" Taking into account these competing considerations,
we conclude that the separation powers principles
explicated in our precedent necessitates
at least a presumptive immunity
from criminal prosecution for a President's acts
within the outer perimeter
of his official responsibility.
Such an immunity is required
to safeguard the independence
and effective functioning of the Executive Branch
and to enable the President
to carry out his constitutional
duties without undue caution."
But what you'll see is that the majority continually
only looks to one side.
They believe that presidents should be free
but what about the other side?
Sure, there are reasons why we want a President
to have the ability to take action,
but we also have some damn good reasons
why we might want the President to hesitate
if not withhold action entirely
when it comes to criminal violations
and the majority just simply doesn't address the other side.
So the majority sets up a paradigm
that first examines whether the conduct involved one
of the President's core powers.
If it does, the President is absolutely immune
from criminal prosecution.
If it does not implicate a core power,
then the courts have to decide
whether the President's acts are
official or unofficial.
If it's an official act,
the President is presumptively immune from prosecution.
If it's an unofficial act,
then the President is not immune.
So how do we determine if the President's action
is part of their core responsibilities or not?
Well, we don't know.
There's no standard in this opinion.
They are apparently, according to this court,
whatever powers the president has
that are not shared with other branches of the government.
But it's not like those powers are just listed
in the Constitution.
And other than the few powers
that were explicitly enumerated by this court,
including removing people from office
and commanding the military,
we have no idea what might be considered
a core power or not.
But even those enumerated core powers are terrifying
because the court specifically said commanding the military.
So if you take one thing away from this video, it's this,
because commanding the military
is apparently a core presidential power
and use of core presidential power
is absolutely immune from criminal prosecution,
any use of the military by the President,
including using the American military on American soil,
is absolutely immune from criminal prosecution.
And if you take two things away,
it should be that the President
can do anything related to the DOJ,
create sham investigations,
sham prosecutions, fabricate evidence,
they can do any of that and they are absolutely immune
because that's a core function.
And a few really good commentators
put it this way,
the office of the president is like a gun.
When you get elected president,
you have an unfettered right
to use that gun any way that you want to.
Your motives and purposes for using
that gun are completely irrelevant.
You are the President,
use the gun however you want.
Criminal law does not apply to your use of that gun
and that is why multiple Supreme Court justices
are concerned about a President's SEAL team six-ing
their political rivals.
But some official acts are only presumptively immune.
So how would a prosecutor overcome the presumption
of immunity that comes with non-core official acts?
Well again, we have no idea,
the court doesn't provide a standard.
The only thing the court says is that,
" At a minimum, the President
must be immune from prosecution
for an official act unless the government can show
that applying a criminal prohibition
to that act would pose no dangers
of intrusion on the authority
and functions of the executive branch."
This is barely a limit.
There's almost no reason to distinguish
between core and non-core official acts
if there's no limit on
what can be an official act that receives immunity.
This language is from the original
Fitzgerald balancing test
but turned on its head.
Instead of balancing the importance of the intrusion,
the court simply says if there's any danger,
any danger at all of intrusion,
there is immunity that attaches to that action.
As Justice Sotomayor said in her dissent,
" No dangers, none at all.
It is hard to imagine a criminal prosecution
for a President's official acts
that would pose no dangers
of intrusion on presidential authority
in the majority's eyes.
Nor should that be the standard.
Surely some intrusions on the Executive
may be justified by an overriding need
to promote objectives within the
constitutional authority of Congress.
Other intrusions may be justified
by the primary constitutional duty
of the Judicial Branch to do justice
in criminal prosecutions.
According to the majority, however,
any intrusion on Executive power is too much.
When presumptive immunity is this conclusive,
the majority's indecision as to "whether
official acts immunity must be absolute" or whether,
instead, "presumptive immunity is sufficient",
hardly matters.
Now I've seen a few legal pundits say
that this decision is no big deal
because immunity only attaches absolutely
for the exercise of core presidential powers,
despite the fact that the military
is almost certainly core power
and lets the President drone strike their rival,
but it's okay because other official acts are only
presumptively immune and therefore can be prosecuted.
But based on this language, that's not the case.
Given that the only official acts
that can be prosecuted are ones
where there is absolutely no danger
of intrusion into the authority
and functions of the Executive Branch,
that category is vanishingly small.
Worse, you can't look to the President's motives
to determine whether the act was official or not.
Now even if you're President
and you murder your political rivals
and receive protection,
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Okay okay, sure.
But unofficial acts are not immune, right?
Well, hold on.
First, how would we distinguish a President's official
actions from his unofficial ones?
Well, the Court says," When the President
acts pursuant to constitutional and statutory authority,
he takes official action to perform the
functions of his office."
However, the court then says
that official acts are not constrained
to the president's constitutional and statutory authority.
The majority says," And some presidential conduct,
for example, speaking to and on behalf
of the American people certainly can qualify
as official conduct when not obviously connected
to a particular constitutional or statutory provision.
For those reasons, the immunity we
have recognized extends
to the outer perimeter
of the president's official responsibilities,
covering actions so long
as they are not manifestly
or palpably beyond his authority."
So if you think that sounds
like a very broad description
of presidential official acts, you'd be right.
I would be challenged to come up
with a broader definition.
But surely plotting to overturn
an election result would be manifestly
and palpably beyond the president's authority, right?
Wrong.
The Supreme Court said,
" In dividing official from unofficial conduct,
courts may not inquire into the president's motives."
According to Roberts,
even asking the question would cripple
the Executive Branch's ability to function.
And it gets worse.
According to Justice Roberts,
" Nor may courts deem an action unofficial merely
because it allegedly violates a generally applicable law."
So if a President's action violates a law,
that doesn't mean he can be prosecuted.
- Well, when the president does it,
that means that it is not illegal.
- As Justice Jackson points out in her dissent,
the government will have difficulty proving
whether an act is official or unofficial
since it can't introduce evidence
of the President's motives.
That's right, the Court says you can't look
to the President's motives
to determine whether an act is official
or unofficial either.
You know, for reasons.
The only question is whether the President
has the power or not.
And Justice Jackson points out the problem
with this "means only" or "authority only" approach.
In her dissent in a footnote, she says,
" To fully appreciate the oddity
of making the criminal immunity discrimination
turn on the character of the President's responsibilities,
consider what the majority says is one
of the President's conclusive
and preclusive prerogatives.
The President's power to remove those
who wield executive power on his behalf.
While the President may have the authority to decide
to remove the Attorney General, for example,
the question here is whether the President
has the option to remove the Attorney General
by say, poisoning him to death.
Put another way,
the issue here is not whether the President
has exclusive removal power,
but whether a generally applicable criminal law
prohibiting murder can restrict
how the President exercises that authority.
And the implied answer in that footnote
is that the President is free to poison any member
of their staff or cabinet
because they have authority to remove that person.
They've got the power, so any means whatsoever
would be an official act.
And I'm not being histrionic here.
Justice Sotomayor says the majority
allows the President to send SEAL Team six
to kill their political rival.
Justice Jackson says the majority allows the President
to poison any member of their staff.
This isn't just me,
these are the dissenting justices on the Supreme Court.
This is what I meant when I said this was bad.
And this policy argument on which they 100% rely,
stems from the idea of separation of powers,
but it also turns that idea completely on its head
because part of separation of powers
is checks and balances,
and here they've organized things in a way
that the Executive is completely unchecked
by either of the other branches of government.
And while the majority opinion is 43 pages long,
it never got around to defining unofficial acts.
So while it provides tons of guidance on
what is an official act
and is therefore immune from prosecution,
they give zero guidance whatsoever on
what is an unofficial act and
therefore would be prosecutable.
All we know is that official acts which are immune
are anything within the outer perimeter
of the President's official responsibilities
covering actions so long as they are not manifestly
or palpably beyond his authority.
That's almost anything a President does.
So the Court has also made the official
versus unofficial distinction almost meaningless.
As Justice Sotomayor says,
" In fact, the majority's dividing line
between official and unofficial conduct
narrows the conduct considered
unofficial almost to a nullity.
It says that whenever the President acts in a way
that does not manifestly or palpably
beyond his authority,
he's taking official action.
It then goes a step further in dividing official
from unofficial conduct,
courts may not inquire into the president's motives.
It is one thing to say that motive is irrelevant
to questions regarding the scope civil liability,
but it's quite another to make it irrelevant to questions
regarding criminal liability.
Under that rule, any use of official power
for any purpose,
even the most corrupt purpose indicated
by objective evidence of the most
corrupt motives and intent,
remains official and immune.
Under the majority's test,
if it can be called to test,
the category of presidential action
that can be deemed unofficial
is destined to be vanishingly small."
So to help understand all these distinctions,
the great people over at Just Security
put together this great chart.
Starting from right to left,
if there is official conduct, we have to ask,
" Is it within the core constitutional authority?"
If it is, there's absolute immunity, no prosecution,
and you can't use it as evidence.
If it's not core constitutional authority,
you have to ask," Does it pose any danger
of intrusion on the authority
and functions of the Executive Branch?"
If it does, no prosecution, can't use it as evidence.
If it doesn't pose any dangers of intrusion
on the authority and functions of the Executive Branch,
then there is no immunity and you can use it
as evidence in a prosecution.
Then going back up to the top of the chart,
if the conduct is a hundred percent unofficial,
then yes you can prosecute it
but remember, you cannot use any official acts
or anything that was deemed an official act
as evidence in that particular trial.
Now when courts address constitutional questions,
they're generally bound by principles of judicial restraint.
Now the consequences of this decision
are not just about Trump,
it applies to all presidents for the foreseeable future.
And that's why it's important
to understand the criticisms
of this decision and why it's so dangerous.
So let's start with one of the Court's first big leaps,
the idea that immunity shields a President
from criminal as well as civil penalties.
Why did the majority grant such sweeping immunity?
Well, according to the majority," The purpose
of a vigorous and energetic executive,
the Framers thought, was to ensure good government
for a feeble executive implies a feeble
execution of the government."
They pull that line out of context
from Federalist 70 and that's about it.
You apparently can't have any
enfeeblement whatsoever of the President,
even though every President
for the last 250 years has assumed
they could be criminally liable
for at least some of their conduct.
But that's it, that's all the support they have.
It's just a policy argument
that a vigorous unencumbered presidency is good.
Therefore, almost full immunity.
QED.
From proclaimed originalist and textualist,
this is honestly shockingly dishonest and hypocritical.
Because we're dealing with the Constitution,
Congress can't pass a law
that says the President will be criminally liable
for virtually anything
and the Judiciary can't prosecute the President.
So the President is unchecked
and the majority opinion doesn't even address
the public's interest in not having a criminal President.
As Justice Sotomayor points out in her dissent,
the court's precedent suggests that Presidents do not
and should not have broad immunity from criminal law.
" At the same time,
the public interest in federal criminal prosecution
of a former President is vastly greater
than the public interest in a private individual civil suit.
All nine justices in Fitzgerald explicitly
recognize that distinction.
The five-Justice majority noted
that there was a greater public interest
in criminal prosecutions than in actions for civil damages.
Chief Justice Burger's concurrence
accordingly emphasized that the majority's immunity
was limited to civil damages claims
rather than criminal prosecution.
The four dissenting Justices agreed
that a contention that the President
is immune from criminal prosecution in the courts,
if ever made, would not be credible."
And the ramifications of declaring the President
above criminal law are huge.
Justice Jackson explains," Put simply,
immunity is exemption from the duties
and liabilities imposed by law.
In its purest form, the concept of immunity
boils down to a maxim,
"The king can do no wrong",
a notion that was firmly rejected at the
birth of our republic."
And as Justice Sotomayor explains,
" The majority makes three moves
that in effect completely insulate
Presidents from criminal liability.
First, the majority creates absolute immunity
for the President's exercise
of core constitutional powers.
This holding is unnecessary
on the facts of the indictment,
and the majority's attempt to apply it
to the facts expands the concept of core powers
beyond any recognizable bounds.
In any event, it is quickly eclipsed
by the second move,
which is to create expansive immunity
for all official acts.
Whether described as presumptive or absolute
under the majority's rule, a President's use
of any official power for any purpose,
even the most corrupt, is immune from prosecution.
That is just as bad as it sounds and it is baseless.
Finally, the majority declares
that evidence concerning acts
for which the President is immune
can play no role in any criminal prosecution against him.
That holding which will prevent
the government from using a
President's official acts to prove knowledge
or intent in prosecuting private offenses is nonsensical.
Argument by argument,
the majority invents immunity through brute force.
Under scrutiny, its arguments crumble.
To start, the majority's broad official acts immunity
is inconsistent with text, history
and established understandings of the President's role.
Moreover, it is deeply wrong
even in its own functionalist terms.
Next, the majority's core immunity
is both unnecessary and misguided.
Furthermore, the majority's illogical
evidentiary hearings is unprecedented.
Finally, this majority's project
will have disastrous consequences for the presidency
and for our democracy.
The main takeaway of today's decision
is that all of a President's official acts
defined without regard to motive or intent,
are entitled to immunity
that is at least presumptive and quite possibly absolute.
Whenever the President wields the enormous power
of his office, the majority says
the criminal law,
at least presumptively, cannot touch him.
The official-acts immunity has no firm grounding
in constitutional text, history or precedent.
Indeed, those standard grounds
for constitutional decision making all point
in the opposite direction.
No matter how you look at it,
the majority's official-acts immunity
is utterly indefensible."
Now the six conservatives in the majority,
all of them self-describe strict textualists,
were really offended by this comment.
They say that," A specific textual basis has not been
considered a prerequisite to the recognition of immunity."
And Justice Roberts tries to rebut Sotomayor
by noting that the Constitution is silent
on all matters related to prosecuting ex-Presidents,
" Conspicuously absent is the
mention of the fact that since the founding,
no President has ever faced criminal charges,
let alone for his conduct in office."
But that's entirely Sotomayor's point.
She says the Constitution's silence is noteworthy
in at least three respects.
" First, the Framers clearly knew how to provide
for immunity from prosecution
because they did give narrow immunity
to legislators via the Speech or Debate Clause."
She says," They did not extend the same
or similar immunity to Presidents."
This is classic textual interpretation.
If you're bound by the Constitution
and the Constitution grants immunity in some places,
but is silent as to immunity in other places
that immunity doesn't exist.
Her second point is that some state constitutions
did provide express immunity for sitting governors,
but the Constitution did not.
Again, calling in into question
the reason the Framers did
not extend that privilege to a sitting President.
And the third contention was
that the impeachment judgment
clause cut against the Court's position,
" That clause presumes the availability
of criminal process as a backstop
by establishing that an official impeached
and convicted by the Senate
shall nevertheless be liable
and subject to indictment, trial
and judgment and punishment according to law.
That Clause clearly contemplates
that a former President may be subject
to criminal prosecution for the same conduct
that resulted or could have resulted
in an impeachment judgment,
including conduct such as bribery."
So there's no other way to put this.
This is a horrifying opinion
and I personally worry about the future of this country.
For one reason, we can't change this,
there's no one to appeal to.
Congress can't fix this with legislation.
We can't appeal to the courts
because the highest court in the land says
that the immunity exists
and it's almost always absolute.
The Constitution is the highest law of the land.
And it's effectively like the Supreme Court
has amended the Constitution to include an immunity
that has never existed before,
with zero basis in the text
and history of the Constitution.
All we can do is hope
that future presidents won't use this power.
This is horrifying not only for those
that think former President Trump
committed crimes while in office,
but for anyone that believes
the President should be bound by the law.
As of today, for many, many actions,
regardless of their inherent criminality,
the President is immune.
And even if you believed every crazy thing
that has been alleged about Biden
and the Biden crime family,
this decision would immunize almost every allegation
that has been levied against them.
And of course, the shadow of Trump's actions looms large,
but I wouldn't want this opinion to come down
during any presidency,
nor does any serious jurist think
that this should be the law going forward.
No president should have this immunity.
No President should have this power.
And perhaps someday the Supreme Court
will scale back this opinion
and provide reasonable definitions
but as it stands now,
current and future presidents have the powers of a king.
So yeah, this is bad
and I frankly can't think of anything worse.
And that's also reflected
in the news reporting as well.
What's interesting is that the Supreme Court decision
has been covered extensively by over 400 news outlets.
33% of the reporting coming from the Left
and only 17% coming from the Right.
But if you compare the headlines,
you'll start to see some interesting framing emerge.
On the Left, you have a lot of outlets saying
that Trump was granted immunity,
on the Right, outlets tend to draw the distinction
between official acts and private acts.
And depending on which article you see first,
your view of the story can be completely different.
If you read the Left-leaning sources first,
you might think the Presidents have complete immunity
and only focus on the potential negative outcomes,
which frankly is more accurate.
And if you read the ones on the Right,
you might fail to see any of the potential
repercussions from this decision.
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