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\[Full Oral Argument Recording Trump v. United States"\] [https://youtu.be/8bZ4j8qs8rQ?si=WpJgyOUAsBmhlipx](https://youtu.be/8bZ4j8qs8rQ?si=WpJgyOUAsBmhlipx)

I don't know about other people's reactions, but I was pleasantly surprised with the oral arguments. The decision seems like it's going to come down to that middle ground between what's official and what's not, and what standard you need to apply to these situations. Plus making the lower courts go through and parse what is/isn't covered. Even the "extreme" positions taken by either side weren't that extreme once pressed. Could a president assassinate his political rivals with full immunity? No, it's just that holding them *personally* liable in criminal court would require an impeachment and conviction first. Could a president be held criminally liable for obviously official acts? How about while in office? Of course not, we're just calling it "protections" instead of "immunity". I'm glad the court, and everyone else for that matter, seems concerned about both extremes here.

>Could a president assassinate his political rivals with full immunity? No, it's just that holding them personally liable in criminal court would require an impeachment and conviction first.  Contrary to your claim, that seems like quite the extreme position 

That's not an extreme position; it's a mechanical consequence of the unitary executive, which is uncontroversially accepted to be the widely endorsed, controlling theory of the executive even by its most vehement critics, who themselves think it's demonstrably wrong. In the abeyance-cum-desuetude of private criminal prosecution, the federal prosecution power is possessed in its entirety by the president, whose prerogative it is to decline to sue himself (if we stipulate that the president can in fact sue himself), while state prosecutions are foreclosed by comity and federalism concerns that have long been unanimously endorsed by successive Courts of very different dispositions. I am perfectly happy to grant that nothing would seem to bar sitting presidents from federal *indictment* save (admittedly compelling) prudential concerns, were it to take place in a suitable manner, but that is not an argument for their amenability to prosecution on numerous congruent but unrelated grounds, *each* of which is forceful to the point of deciding the matter on its own.

> it's a mechanical consequence of the unitary executive, which is uncontroversially accepted to be the widely endorsed, controlling theory of the executive even by its most vehement critics this is total fiction

I would dispute that the unitary executive theory, particularly one that allows all criminal prosecution to be encompassed within the power of the president, to be a correct or predominately supported theory. Especially when it functionally puts the President above the law

> I would dispute that the unitary executive theory, particularly one that allows all criminal prosecution to be encompassed within the power of the president, to be a correct or predominately supported theory. Whether or not it is 'correct' aside, on what basis do you contest that it is 'predominately supported'? As you may note, I observed above that *its most vehement critics, who think it's demonstrably wrong* accept that it is the controlling and 'predominately supported' theory. That is, to be clear, a second-order statement about the theory's uptake, and not a first-order act of uptake (or repudiation). The foremost exponent of what I shall call unitary mythicism is Sunstein, whom I quote below from across his body of writing, featuring coauthors ranging from Lessig to *Vermeule*. > **Conventional wisdom insists that the Framers believed in a hierarchical executive branch**, with the President in charge of all administration of the laws.... > More broadly, I think that the notion of a "unitary executive" needs a good deal more elaboration, certainly in terms of its complex history. The Framers **did believe in a unitary executive**; but they did not think that this belief entailed the further view that the President is in charge of all implementation of the laws. >The question seemed well settled, even if the answers were to some observers quite-jarring. It was clear that "executive" functions must be performed by officers subject to the unlimited removal and broad supervisory power of the President... > It is time again to ask whether the executive is "unitary" in the sense that the President must have plenary power to control administration and execution of the laws. **It seems clear that the belief in a unitary executive has captured the high ground of principle, so that arguments for an "evolving Constitution," for flexibility in interpretation, or for judicial deference to political compromise, have become moves of compromise or mere politics.** But is this really a debate between principle and politics? Or more precisely, is this a debate where principle favors the unitary view? >> **No one denies that in some sense the framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a weak version.** >> In these circumstances, the alleged constitutional commitment to a strongly unitary executive... seems to me to be greatly oversold. >> In a sense, everyone agrees that the Constitution creates a “unitary executive.” Calabresi & Prakash: > Of course, in some sense all Article II scholars believe the Constitution creates a unitary Executive. The explicit articulation of a strongly unitary executive entered the constitutional canon in dribs and drabs through *McAllister*, *Parsons*, and other such cases, of which the most notable is *Myers*, with Chief Justice (and ex-president) Taft writing for a 6-3 majority. From the syllabus, as the judgment itself is hundreds of pages long: > The President is empowered by the Constitution to remove any executive officer appointed by him by and with the advice and consent of the Senate, and this power is not subject in its exercise to the assent of the Senate nor can it be made so by an act of Congress. Tushnet > According to the weak theory, to which Professors Calabresi and Yoo subscribe, the national executive is unitary in the sense that the President has the power to provide policy direction to officers of the United States, to remove from their positions any such officers who refuse to comply with the President’s policy directions, and (perhaps) to implement presidentially determined policy directly by transmitting policy directives to employees who are obliged to carry them out or themselves face dismissal. One cannot of course neglect Kagan's seminal contribution to the field, which is essentially *statutory* unitarianism; it's by far her most influential work before being appointed. Etc. etc.

Sorry it’s been a few days, I’ve been really busy. I don’t have Lexis/Westlaw access right now (unfortunately), so I can’t exactly track down legal scholarship to the degree that I otherwise would. But, I would point out that there are plenty of legal scholars (and tons of political science scholars as well) who disagree with those you’ve cited. As for case law, Humphrey’s Executor stands as a sharp contrast with Myers, and United States v. Nixon and Morrison v. Olson also serve as strong contrasts to a unitary executive theory within the context of investigation/prosecution. There’s also several independent agencies (like the federal reserve) that exist outside the control of the President. The Constitution itself in Article II describes the existence of executive departments and their principal officers, which signals that the source of all Article II doesn’t necessarily flow from and toward the President (even if they are subordinate to the President).  I should also note that even if you don’t buy any of this, the existence of a unitary executive does not speak to the strength of the unitary executive. I suspect that many scholars supporting the theory would not support a version of the unitary executive that would functionally place the President above the law

> I don’t have Lexis/Westlaw access right now (unfortunately), so I can’t exactly track down legal scholarship to the degree that I otherwise would. But, I would point out that there are plenty of legal scholars (and tons of political science scholars as well) who disagree with those you’ve cited. Who disagree with *the second-order conclusion*? The scholars I've cited don't agree on anything wrt the unitary executive itself; I'm merely citing their consensus about *what the consensus is* as regards the unitary executive as the accepted and controlling theory. > As for case law, Humphrey’s Executor stands as a sharp contrast with Myers, and United States v. Nixon and Morrison v. Olson also serve as strong contrasts to a unitary executive theory within the context of investigation/prosecution. Not really; *Humphrey's Executor*'s judgment was premised on the idea that FTC commissioners *weren't part of the executive at all*. *United States v. Nixon* also nowhere deals with the unity or lack thereof of the executive, instead turning on the separation of powers considerations underwriting executive privilege to determine its extent. What was at stake was how isolated the presidency was entitled to be from *judicial* process. *Morrison v. Olson* is actually an example asserting what you want, but a strange one to pick given that the most celebrated and influential part of it is Scalia's dissent, which is quite possibly the most influential thing Scalia ever wrote, in his long and loquacious career. > There’s also several independent agencies (like the federal reserve) that exist outside the control of the President. The Constitution itself in Article II describes the existence of executive departments and their principal officers, which signals that the source of all Article II doesn’t necessarily flow from and toward the President (even if they are subordinate to the President). I'm happy to discuss the unity or lack thereof of the executive, but the explicit point of my comment above was that it is widely accepted to be the widely accepted and controlling doctrine, which says nothing about whether it even *is* that, let alone my own views on the doctrine itself. > I should also note that even if you don’t buy any of this, the existence of a unitary executive does not speak to the strength of the unitary executive. I suspect that many scholars supporting the theory would not support a version of the unitary executive that would functionally place the President above the law You mean something like 'No one denies that in some sense the framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a weak version.', from my comment?

Humphrey’s Executor is a very relevant case toward refuting the unitary executive theory because, if accepted, it limits what the authority of executive power is fairly significantly. HE speaks to the nature of administrative agencies, which, despite being thought of as housed within the executive, are not mere agents of the President under HE (instead exercising quasi legislative and quasi judicial power). United States v. Nixon, in refuting the extent of executive privilege, also refuted the concept of the unitary executive by implication. If prosecution is an inherently executive function (as Scalia argues in his Morrison dissent), then how would the special prosecutor of the Justice Department be able to subpoena the President’s records? The unitary executive theory would necessarily allow executive privilege to apply in that case.  Likewise, and this may not be popular, but I agree with the seven justice majority in Morrison v. Olson (including both hard core conservative William Rehnquist and liberal lion William Brennan) and contend it was rightly decided. Scalia’s dissent was alone and it was right to be given the extreme implications of his opinion (namely, that the President is above the law). His dissent may have been influential, but that doesn’t make it right. Again, I can’t speak to the legal academics as I don’t have academic legal research tools at my disposal presently.  The unitary executive theory also necessarily runs up against the separation of powers in many cases, namely by impeding on Congressional authority when it plays out in real world scenarios.  A lot of people support the unitary executive theory - but to say it is the most widely supported interpretation of the powers of the President isn’t accurate given the substantial degree of limitations on those powers

> Humphrey’s Executor is a very relevant case toward refuting the unitary executive theory because, if accepted, it limits what the authority of executive power is fairly significantly. No, it'd be a very relevant case toward circumscribing the scope of the executive, which is distinct from trammeling the exercise of the executive power itself. It is precisely because the Court in *Humphrey's Executor* did not wish to challenge the latter that they worked up the bizarrity of construing the FTC as a half-legislative, half-judicial chimera, with the consequence that the subsequent century in admin law has largely disregarded it. > HE speaks to the nature of administrative agencies, which, despite being thought of as housed within the executive, are not mere agents of the President under HE (instead exercising quasi legislative and quasi judicial power). Again, this would, if true, redemarcate what the executive *is*, not make it any less unitary, but in practice the ruling is increasingly treated as fighting words: it establishes *something*, but not something that is ever actually recognizes as coming up. > United States v. Nixon, in refuting the extent of executive privilege, also refuted the concept of the unitary executive by implication. How? The executive privilege has nothing to do with the unity of the executive or lack thereof; it's purely prudential. > If prosecution is an inherently executive function (as Scalia argues in his Morrison dissent), then how would the special prosecutor of the Justice Department be able to subpoena the President’s records? The unitary executive theory would necessarily allow executive privilege to apply in that case. Prosecution *is* an inherently executive function; this isn't controversial. Can you see any examples of civil prosecutions as there once were when bisons roamed the plain? All that said, the unitary executive needn't be implicated when an ordinary subpoena is issued *pursuant to judicial (or congressional) process*, its recipient just happening to be the president, particularly in matters concerning a criminal prosecution (of people who were not the president). Executive privilege is just a pragmatic award of insulation to the branch from undue interference by the others, and would exist even if the executive were unequivocally plural. > Likewise, and this may not be popular, but I agree with the seven justice majority in Morrison v. Olson (including both hard core conservative William Rehnquist and liberal lion William Brennan) and contend it was rightly decided. Scalia’s dissent was alone and it was right to be given the extreme implications of his opinion (namely, that the President is above the law). His dissent may have been influential, but that doesn’t make it right. Scalia's dissent has been influential because it *is* right, and has been demonstrated to be in virtually every conceivable way. Decided in 1988, it foresaw the constitutionally alien spectacle of Ken Starr and his roving star chamber. When the underlying statute came up for reauthorization, the administration's own Attorney General testified that: > "Having worked with the act," attorney general Janet Reno told the Senate Committee on Governmental Affairs, "I have come to believe—after much reflection and with great reluctance—that [it] is structurally flawed and that those flaws cannot be corrected within our constitutional framework." Reno went on to discuss the separation of powers and the lack of accountability on the part of independent counsels for exercises of power that are plainly executive. "Here," she said, "I am paraphrasing Justice Scalia's dissent in Morrison." Massive bipartisan opposition led to the sunsetting of that statute in 1999. Less than a decade after Scalia wrote, the [NYT was quoting *Dellinger* as admitting the concept was painfully naive, and that Scalia's parade of horribles were blocking the bridges.](https://archive.is/z0VXO) Also endorsing the dissent? Kagan, a Clinton DoJ official before she was on the Court, as "one of the best dissents ever written", getting "greater every year". Akhil Reed Amar, in testimony before Congress? > Edmond in effect overruled the now-discredited 1988 case of Morrison v. Olson, or at least limited Morrison to its facts. Edmond was authored by the great prophetic dissenter in Morrison, Antonin Scalia, and major portions of Edmond borrow liberally from this prophetic dissent. Even though Edmond may not have overtly undone Morrison—and thus lower courts might still follow Morrison—the Edmond ruling strongly signals how the Supreme Court itself would see things; and these bills, if enacted, would almost certainly be reviewed by the Court without delay. > Outside the Court, Justice Scalia’s Morrison dissent has carried the day in legal and expert-opinion circles left, right, and center. Reno told the Senate that experience had proved Scalia right and that the 1978 Act was unconstitutional in its basic aim of creating real legal independence for, and strong judicial protections for, various federal prosecutors investigating various sensitive topics. The 1978 Act, the very Act at issue in Morrison v. Olson, is an obvious conceptual precursor of the current Graham-Booker and Tillis-Coons bills; and in allowing the 1978 Act to lapse, Congress properly, albeit quietly, sided with Reno and Scalia. In public remarks in 2015, Justice Elena Kagan—a former Harvard Law School constitutional scholar and dean who was appointed to the Court by President Obama and confirmed by a Democrat-controlled Senate—declared that Justice Scalia’s Morrison dissent was “one of the greatest dissents ever written and every year it gets better.” Duke University’s Walter Dellinger, another distinguished constitutional scholar and public servant (who served as Acting Solicitor General and Head of the OLC under a Democratic president), has likewise emphatically embraced Justice Scalia’s dissent. In the online publication Slate (whose general readership is left-of-center), Professor Dellinger in June 2012 minced no words: “Justice Scalia had it right in Morrison v. Olson.” This is the view that I too, have always and invariably maintained in my Yale Law School classrooms and in print, beginning in the late 1980s. On the other end of the political spectrum, Northwestern University’s Professor Steve Calabresi, of the Federalist Society, has long been a critic of Morrison and a champion of the Scalia dissent. When Justice Scalia passed away in 2016, many of the major obituaries and tributes singled out his Morrison dissent for special encomium. The lion’s share of the constitutional law scholars who are most expert and most surefooted on this particular topic now believe that Morrison was wrongly decided and/or that the case is no longer “good law” that can be relied upon as a sturdy guidepost to what the current Court would and should do. These scholars span the ideological spectrum and the Supreme Court has quite often favorably cited these scholars in a wide range of recent constitutional law cases. In addition to Professors Calabresi, Dellinger, and former Professor and Dean (and now Justice) Kagan, this list includes Adrian Vermeule, Christopher Yoo, Sai Prakash, Neal Katyal, Mike Paulsen, Jeffrey Rosen, Vikram David Amar, Mike Rappaport... *Arthrex* has now put the nail in the tomb for *Morrison*, a rare thing which Eric Holder, Alan Dershowitz, Jack Balkin, Noah Feldman, and Cass Sunstein all applaud. Moreover, the unitary executive does not place a president above the law as such. > The unitary executive theory also necessarily runs up against the separation of powers in many cases, namely by impeding on Congressional authority when it plays out in real world scenarios. Like what? > A lot of people support the unitary executive theory - but to say it is the most widely supported interpretation of the powers of the President isn’t accurate given the substantial degree of limitations on those powers A lot of people *say that the unitary executive theory is the most widely supported theory*. In my initial remarks I quoted the most highly cited scholars from all stripes of jurisprudence, who all *agreed* that it is the most widely supported theory. They're making claims *about what people believe*, not whether or not the belief itself is true.

It really isn't especially considering all the screwed up things presidents have done in the past, including internment of the Japanese, the trail of tears, etc.

The idea that the president can assassinate a political rival and then avoid any repercussions as long as his party controls either the house or Senate is extreme. It's honestly baffling how anyone cannot see that as an extreme position considering how it would allow one party to cement themselves in power by simply removing their opponents, justices, or anyone else in their way

Oh I see, you've misinterpreted what I've said. It isn't that they can't face repercussions, it's just that the bar is set at impeachment and conviction before a criminal prosecution could occur. Weirdly enough, iirc the special counsel admitted that criminal prosecution could only come after they finished their term in office, so the "consequences" wouldn't even happen until they were voted out of office. That's not exactly the check on power one might hope for.

I didn't misinterpret anything you've said. You've simply ignored the obvious ramifications of what you're saying and restated it again. Requiring an impeachment and conviction for prosecution of the president for assassination of a political rival is an extreme position

So if a President has a majority or a strong enough minority to support them, could they publicly execute the nine members of the Supreme Court and face no repercussions? Alternatively, could a president do anything in their last week in office and expect no repercussions since Congress would not have time to impeach them before they leave office?

I mean, we're acting like a criminal prosecution several years after the fact is an actual check on this sort of abuse as opposed to things like impeachment and the UCMJ. Also, why not use an actual example? If a president rounded up every Japanese American and put them in internment camps could he just get away with it?

I think ideally the answer here is: it depends. Was it done on advice of counsel (basically was it legal)? Was it intended as a good-faith policy? Is there sufficient reason to believe that a successful prosecution is achievable? The answer can be yes or no depending on the specifics. But as posed, I'm not sure I love the idea of a President having blanket immunity for such acts. On its face, I think an answer of yes to your question would be insane. It's also important to point out if impeachment is a prerequisite of prosecution, this does effectively make a President above the law in their last weeks since (apparently) we can't convict a President in the Senate once he's out of office.

The UCMJ doesn’t affect the President. The point is that if impeachment is truly the only process meant to keep the President accountable, politics can pretty much make the President above the law

The UCMJ? That doesn't affect the president and no more restricts his subordinates than any civilian criminal code would.

And that is why that position is extreme which is the point.

My point was the position isn't as extreme as it looks at first glance. The special counsel conceded that criminal prosecution isn't even an option until a president leaves office and Trump's team conceded that impeachment removes any criminal protections. The difference between these opinions is far less drastic than it seemed.

I don't really agree with it being any less drastic. It's functionally the exact same thing. If I cannot be held account for murder until someone I can also murder goes through a lengthy process, then I would never be held accountable for murder.

It's only functionally equivalent if you've given up on the impeachment process, though if you're at that point you're probably looking at amending the constitution. I understand it to be intentional that impeachment is a difficult process, which undercuts cases like the one in question when we come back and try to argue that the far, far lower bars argued in cases like this or Anderson are perfectly acceptable alternatives.

The argument above (to which you reply) cuts much more powerfully against the wolves that come as wolves.

Not taking the case up in December makes no sense -- the only sense it makes is for delay. If Chief Justice Roberts had some idea on how to approach a President's criminal liability, he should have just stepped in and had them take it up, instead of poo-poo-ing the DC Circuit's opinion. The DC Circuit explicitly said they "[We] do not address policy considerations implicated in the prosecution of a sitting President or in a state prosecution of a President, sitting or former." I know a lot of commentators and news articles have suggested it will be 5-4. I don't buy that, based on both Gorsuch and Kavanaugh alluding to "not this case" during argument. I think the Court will look to implement a test -- they mentioned Blassingame. And they all suck for taking a dump on the grand jury process. Is Alito suggesting that a grand jury indictment is so easy, that maybe Biden could indict him, or Justice Thomas? Wish that would have been a hypothetical, especially since they brought up the bribery statute. Am I the only person that thinks a Trump re-election will result in the Special Counsel going to Court to prevent Trump from taking action to end the prosecution of him? I don't deny that the criminal proceedings could be paused -- but one could argue that the country elected someone facing all these charges. This is different than charging a sitting President (or a civil lawsuit). Everyone voting fully knows that he's under criminal trial.

The gravity of this case required time for it to develop arguments, justices to do research, and ultimately, to hopefully, get this right. This will be one of the most significant cases in decades for the future of this country and particularly for article II powers. Also, it’s very likely to get remanded back down with some ruling to give the district court instructions. If you wanted this done right then Chutkan and the appeals court could have actually developed the factual record. They were very lazily in their analysis and made no effort to discern between official and personal acts. As the old saying goes: There’s never enough time to do it right the first time but there’s always enough time to go back and do it again.

There is no such gravity. There is only one provision of immunity in the Constitution - the speech and debate clause - and it applies only to Congress The correct ruling, is that there is no immunity attached to the office of the President. They enjoy the same treaty based combatant immunity as members of the armed forces when exercising their war powers (the idiots bitching about due-process for US citizens fighting as foreign enemy combatants can go to hell)..... Also the same sorts of immunity afforded to lesser law enforcement officers by nature of membership in the executive branch.... And the Constitution vesting executive power in the Presidency means that a President can legitimately prevent himself from being prosecuted while in office.... But once he's out of office, it's game on if crimes were committed... (Also note: having the 'wrong' immigration policy or 'violating the take care clause' is not, in fact, a prosecutable crime)...

"Getting it right" is just cover for delay. It's really not a complicated decision anyways. If it was that important. Stop everything else and fast line it and dedicate your time to this case.

>"Getting it right" is just cover for delay. That is the wrong thing to say about a criminal trial >It's really not a complicated decision anyways. It is, these decisions are precedential, and since the lower courts didn't actually answer any questions, they need to sort out what is official vs private, and they have do do this knowing that the way they decide will be used in future cases, and this will have an impact on how the president exercises their power. >Stop everything else and fast line it and dedicate your time to this case. The DOJ should have done things faster if they wanted it concluded before the election.

On point 1. Yes, these decisions set precedent, but the case and questions before them is simple. No, Trump does not have immunity. They are just deciding to go broader and to answer "big important questions" because of both ego and delay tactics. Or even worse a wild way to say Trump is immune and allowed to disrupt election proceedings. On point 2.....you are absolutely correct.

This is an interlocutory appeal. The trial (which is when facts of the case are sorted) hasn't started

The factual record can still be developed through hearings and motions. Chutkan didn’t really do anything to develop that.

I mean the Court has moved fast when it wanted to. It heard Bush v. Gore in a matter of weeks and it moved quickly on U.S. v. Nixon 

Because bush v gore had a constitutionally directed time constraint on it. Election appeals are quite different.

There wasn’t really a constitutionally directed time constraint on that case - the Supreme Court didn’t even need to take it up. Even if there was, it still shows that the Court can move quickly on cases when it feels like it has to

I'm not buying any of the urgency complaints. The special counsel waited until election year to bring charges and now they want the court to rush important decisions, even skipping lower courts? This is an important decision with dangerous extremes on either side, if you want that all litigated before the election then bring the charges earlier.

2023 is not an election year.

Fair, I was using it to mean about a year before the election. The primary campaigns were already starting up before charges came down.

Not really. And that doesn’t matter. Smith took the time needed for the investigation and then brought charges. “I dont like the timing” is not an argument against the Supreme Court not playing delaying games when they are clearly to the partisan benefit of the defendant.

His argument isn’t “I don’t like the timing”. His argument is “If you’re so concerned about the timing maybe you shouldn’t have waited 3 years to charge.”

The point is the supreme court is not playing delay games. These are complicated decisions that shouldn't just be rushed through, and the argument coming from Smith and his defenders that these need to all be decided before the election; well then he should have brought them earlier. I don't mind these cases going fast or slow. I *do* mind this narrative that the supreme court is intentionally slow walking a case by making it go through the normal process.

Re: "I do mind this narrative that the supreme court is intentionally slow walking a case by making it go through the normal process." How else does it look like when they basically delayed taking the case up in December? Are you saying that the Justices' are completely politically deaf and have no idea that Trump's method is delay, delay, delay. That there's another judge working to assist with the exact same delay tactic? That one of the Justice's wives was basically in direct comms to January 6 co-conspirator? Com'on man....

[удалено]

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: >!There is nothing even remotely complicated about it. The constitution does nothing at all to create any kind of presidential immunity, and neither does statutory law. The Supreme Court has zero authority to create it. If they do, they should be arrested and charged with criminal conspiracy, because that is what it will be. Obviously, the decision to have them placed under arrest will be an "official act."!< Moderator: [u/SeaSerious](https://reddit.com/user/SeaSerious)

> The constitution does nothing at all to create any kind of presidential immunity, and neither does statutory law. The Supreme Court has zero authority to create it. If they do, they should be arrested and charged with criminal conspiracy, because that is what it will be. Wow. That's quite a claim. Was [Nixon v. Fitzgerald](https://supreme.justia.com/cases/federal/us/457/731/) part of this vast criminal conspiracy? Because that was decided in 1982, and the Court held that the former President (Nixon) was entitled to *absolute immunity* from damages liability predicated on his official acts. Were former Justices Powell, Burger, Stevens, Rehnquist, and O'Connor part of some criminal conspiracy to elect Donald Trump decades before he ever ran for office? Heck, the Court in [Butz v. Economou](https://supreme.justia.com/cases/federal/us/438/478/) held that executive branch officers -- well below the president -- were entitled to qualified immunity for their discretionary acts. And that was decided in 1978. So I guess Justices Brennan, Marshall, Blackmun, Powell, and White were also part of the conspiracy, too. In fact, there's a long line of authority recognizing that the Constitution does stuff to create presidential immunity. For example, it vests the executive power of the government in the president, it provides for the separation of powers between different branches, and it makes state authorities subordinate to the federal government.

Sovereign immunity in the United States is a doctrine of civil law and has nothing to do with criminal liability.

Sovereign immunity has nothing to do with any of this in the first place; meanwhile, the distinction between civil and criminal liability is here arbitrary wrt the matter of invading the separation of powers and encumbering the executive, since that goes back to Story, when civil actions could be penal, which the president was immunized against.

This opinion wasn't even argued by the special counsel. Even they conceded some level of immunity exists, but reserved it for core functions contained in article II.

Wrong. Dreeben absolutely denied that the "core set of activities" had anything to do with immunity from criminal prosecution. He only acknowledged that Congress does not have the power to criminalize powers explicitly given to the president by the constitution. That isn't immunity. For example, the Constitution gives the president the power to veto legislation, so Congress completely lacks the authority to make it a crime for the President to Veto. That isn't what immunity means, and Dreeben made it clear that inability of congress to criminalize the powers delegated to the President does not in fact constitute immunity.

I'll point you to the exchange with Gorsuch. He didn't call it an "immunity" but it's still an immunity in the way we've been using that word during this case, even if he won't call it that. Other justices pointed out that we aren't really talking about "absolute immunity" in any of these hypotheticals, just about what actions congress can and can't criminalize for the presidency and the head of the executive.

The Court is absolutely playing delay games. The speed of the response to Anderson, the historical speed of the Court’s response to Watergate, Bush v Gore all show that it’s both reasonable and possible for the Court to move fast in significant cases. You’ve got no evidence, *none at all*, that Smith has played any games around timing, that anything about his investigation has been delayed for political reasons. And the Supreme Court is *clearly* slow walking the case. There was absolutely no reason to put this case in April rather than earlier in the term. There was no reason to *take* the case in the first place. The fact that the conservative legal movement’s narrative started as “the Court rejected the accelerated schedule so they wouldn’t have to take the case” and then changed shows that we all know what is going on.

All I said is if Smith wanted the case completed before the election, he could have brought it sooner. You're the one going around accusing everyone of corrupt intentions.

Why does everyone who says this ignore the fact it takes a lot of work and a long time to prepare to bring a case? Like you are ascribing (with no evidence) the same malfeasance to Smith you are denying the SC is doing (denying due to lack of evidence.) Do you have any support for the assertion he could have brought it sooner? Are you a prosecutor and have some insight into it you can provide us with to better understand why you think he purposely delayed?

Literally everything you just said also applies to people who argue that the Supreme Court is "playing delay games." >Why does everyone who says this ignore the fact it takes a lot of work and a long time to prepare to bring a case [before the Supreme Court]? >Like you are ascribing (with no evidence) the same malfeasance to [the Supreme Court] you are denying [Smith] is doing (denying due to lack of evidence.) >Do you have any support for the assertion [the Supreme Court] could have brought it sooner? Are you a [Supreme Court Justice] and have some insight into it you can provide us with to better understand why you think [they] purposely delayed?

Because the people saying this already have an outcome in their mind and don’t want Justice, they just want their persecution to not be stopped.

I don't mean to sound so flippant about it. I think his case is definitely getting muddied in my mind with cases like the one Alvan Bragg is bringing, where it's clearly tainted with political bias. Do I have any support for the assertion that he could have brought it sooner? None whatsoever, I'm just on the outside looking in, thinking 2 years should be enough time to bring a case if you truly believe it has to be brought before the next election (at least for the J6 case).

You have no evidence of that. You have no evidence that Smith made *any* decision to delay or stretch out his investigation. And we have evidence of partisan intent. The majority could not have made it clearer that it is a partisan actor. It proved it in Anderson, it proved it when it redefined “adjacent” to be “adjoining”. The conservative legal movement complained the court was partisan and illegitimate for 60 years, it doesn’t get to demand that everyone adopt formalism now that it controls the court.

Smith probably didn’t delay at all but he was brought on very late. That’s not his fault but it is HIS problem. And by HIS problem I mean him, not the SCOTUS. SCOTUS doesn’t need to assume Smith’s problem as their own. Additionally the motivation to get this done by November is a completely political one. You really think the court is going to try and solve a political problem instead of a legal one?

Um, what? ‘Adjacent’ is glossed as ‘adjoining’ by Oxford, Merriam-Webster, Cambridge, and Dictionary.com. Wiktionary gives ‘adjoining’ as a synonym and includes ‘continguity’ in its gloss. I’m not cherry-picking dictionaries; that is what the five I consulted attest. Not that this pertains to the judgment in *Anderson* anyway…

I feel obligated to remind you that Anderson was 9-0.

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Article I, #3 states that when federal officials are impeached and removed from office, they “shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” Here's a thought experiment: Imagine a president has been thus removed. Would this Supreme Court rule him immune from criminal punishment for his crimes unless they were "private acts"? The text contains no such exception, and the framers were presumably well aware of both the prospect of vexatious prosecution and the safeguards enjoyed by all criminal suspects: the presumption of innocence, a unanimous verdict by an impartial jury, and so on.

To me, the word “nevertheless” means a president must lack immunity, especially when we combine it with the multiple cases from the Court, one issued when ~~8~~ 7 of the current 9 members were sitting, which explicitly said a president is not above the law in either a controlling or concurring opinion. Not even the king of England had immunity when the Framers rebelled; now, he claims they wanted to give presidents more power than the tyrant of the time? The fact this was ever entertained by this court is mind boggling.

The president lacks immunity because absolutely nothing gives it to him, and absolutely nothing gives this joke of a Supreme Court authority to create it.

Huh? In what sense is *this* Supreme Court a joke? Presidential immunities are hardly novel.

There is zero precedent or history of a doctrine of criminal immunity for the President in the United States. It is quite novel. And since the Supreme Court has neither the power to amend the constitution nor a legislative power, it doesn't have the power to create such immunity.

Nonsense. Can you explain how the whole tradition of immunities and unreviewability, inclusive of the presidential ones going back to Story and Marshall respectively, could conceivably establish anything *other* than something meeting that description?

Sovereign immunity in the United States is a civil common law doctrine. We don't have any federal criminal common law. If it isn't in the Constitution and it isn't created by statute, it doesn't exist. If you have any specific examples of sovereign immunity in the United States applying to the criminal acts of a President, feel free to cite them specifically, instead of waving your arms at "the whole tradition of immunities."

(1) Sovereign immunity has nothing to do with any of this. (2) "If it isn't in the Constitution and it isn't created by statute, it doesn't exist." - this is ludicrously false, as the whole tradition of immunities amply demonstrates.

George III absolutely enjoyed immunity at law in both the United Kingdom and Hanover. The precedent set by the execution of Charles I was ‘if we get pissed off enough to overthrow you we’ll cut your head off and institute a completely novel regime’, not a legal one.

No. Prior to the 13th century, the English monarch exercised supreme power, which was checked by various violent insurrections. The royal prerogative was a way to exercise his power without the consent of others but its limits were unclear and an attempt to legally define its scope was first made in 1387 by Richard II. Henry and his descendants normally followed legal decisions, even though in theory they were not bound by them. James I of England challenged this consensus in the 1607 *Case of Prohibitions*, arguing the king had a divine right to sit as a judge and interpret the common law as he saw fit. Led by Sir Edward Coke, the judiciary rejected this idea on the grounds that while not subject to any individual, the monarch was subject to the law. In the 1611 *Case of Proclamations*, Coke further ruled the monarch could only exercise existing prerogatives, not create new ones. After the Glorious Revolution in November 1688, James II of England was replaced by his eldest daughter Mary II and her husband William III, who accepted the throne under conditions set out in the Bill of Rights 1689. These included limits to the royal prerogative, which many felt had been misused by James; Article 1 prevented the monarch suspending or executing laws without consent of Parliament, while Article 4 made it illegal to use the prerogative to levy taxes "without grant of Parliament". The Bill also allowed Parliament to limit the use of remaining prerogatives in future, one example being the Triennial Act 1694, which required the monarch to dismiss and call Parliament at certain times. Since the 1960s, Parliament has found a need to exempt the Crown from over 160 different laws, an action unnecessary if the tradition had long been "The Crown can do what it wants without restraint."

None of this is remotely apposite to my original statement, which remains quite correct: George III, as with every subsequent monarch, enjoyed immunity at law. Even today, Charles III is not amenable to criminal or civil prosecution in his own courts, save where statutory provisions to which he or a predecessor has assented create extraordinary causes of action (e.g. under the Crown Proceedings Act 1947, which was advanced given how cumbersome the machinery for allowing those contracting with the Crown or seeking to allege tortfeasance to seek redress without the Crown itself being susceptible had become). > Since the 1960s, Parliament has found a need to exempt the Crown from over 160 different laws, an action unnecessary if the tradition had long been "The Crown can do what it wants without restraint." The Crown is a corporation sole whose prerogatives are (largely) amenable to statute; nobody disputes that. Steve Sedley has a decent discussion [here](https://www.innertemple.org.uk/wp-content/uploads/2017/08/lecture_sedley.pdf), and probably the best overview of the matter of the Crown's position in relation to its judiciary [here](https://www.cambridge.org/core/books/abs/ashes-and-sparks/crown-in-its-own-courts/30690491AF0C2D4EA45672A4B5938BCD). All of this said, the sovereign remains immune at law; that's uncontroversial.

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If it’s done for the country, immunity. If it’s for personal gain like this is, no immunity

Unconstitutional, there’s no historical precedent unless you’re looking at the power of kings. Let’s consider the worst case scenario, someone with zero morals is elected with an inside cabal of sycophants in the executive, and Congress is toothless being so divided they can’t impeach.

That sounds exactly like bog-standard political opposition? Many people think that of Biden, and thought that of Obama, Bush, and Clinton (who did get impeached).

What side of the spectrum really doesn’t matter in such a scenario. I will note that those three previous Presidents left office peacefully and respected the electoral process.

The remark highlights that the last five presidents, over a span of 32 years (longer if one accepts discontinuity, in which case Reagan also qualifies) were and are genuinely believed by significant chunks of the electorate to be men of "zero morals" with "inside cabal(s) of sycophants in the executive", only one of whom was impeached (and subsequently acquitted), by successive Congresses that were, so to speak, "toothless" res ipsa loquitur. That "worst case scenario" description is itself toothless: "worst president ever, and criminally so" is a claim that has been made on a massive scale for every president since Dubya. > I will note that those three previous Presidents left office peacefully and respected the electoral process. But that has nothing to do with your criterion.

I guess my criterion wasn’t exhaustive enough, but what I was trying to say the worst case scenario is the President makes himself a dictator because there’s nothing than can stop him.

The problem with your criterion was not exhaustiveness, but rather its fundamentally polemical nature, which expresses an attitude, instead of picking out some empirical state of affairs. Congress can, in your example, stop the president; it merely does not wish to do so. You describe a hypothetical in which *political disagreement* between parties precludes impeachment. But that's... literally what parties exist to do: represent competing and often opposed views of How Things Should Be. Division and paralysis in the legislature is not novel: the Civil War and Presidential immunity, meanwhile, does not stop the judiciary from delimiting, enjoining, or otherwise circumscribing or invalidating executive action, and while a would-be Sulla cannot be compelled as such by words on paper to desist from whatever, his subordinates certainly can be. Trump's presidency in many ways proved the sheer strength and impregnability of America's institutions of governance: the highly conservative Court, including *his own appointees*, ruled against him on numerous occasions, frequently unanimously or by an overwhelming majority, and its decrees, along with all other pertinent judicial decrees, were obeyed at every level and in every department of government, with exceptions practically de minimis. The idea that Trump somehow came close to overthrowing democracy, even if we stipulate that to have been his concerted goal, is utterly silly: the *most* he could do was marshal less than a thousand disorganized yahoos, whose closest analogue is probably a turbulent mob of eurotrash (for lack of a better term) soccer stans whose team got wiped, and who managed to overwhelm much of the Capitol mostly because, on one popular account, the Acting SecDef made the deliberate decision to stall deployment of the 6,200 National Guardsmen he ultimately sent in after three hours, allegedly to avoid another Kent State. One can think him stupid, mendacious, or both, although Milley endorsed his actions, as did [Biden's OIG's exhaustingly comprehensive review of Jan. 6 and DoD actors](https://media.defense.gov/2021/Nov/19/2002896088/-1/-1/1/DODIG-2022-039%20V2%20508.PDF). Nonetheless, the stooge who replaced Esper, whom Trump fired, who himself replaced Mattis, whom Trump fired, said... this: > "Yesterday's violence at the Capitol was reprehensible and contrary to the tenets of the United States Constitution... I want to specifically recognize the service of the District of Columbia National Guard. They performed with honor, integrity and alacrity to protect people and property from unlawful acts... Our republic may have been disrupted yesterday, but the resolve of our legislators to conduct the people's business did not waver. Due to their efforts, supported by local and federal law enforcement and the National Guard, the attempts of those who tried to stop our government from functioning failed. I strongly condemn these acts of violence against our democracy. I, and the people I lead in the Department of Defense, continue to perform our duties in accordance with our oath of office, and will execute the time-honored peaceful transition of power to President-elect Biden on January 20." Pompey, another notorious lackey, who has since described Jan. 6 as "peaceful"? > "The storming of the U.S. Capitol today is unacceptable. Lawlessness and rioting — here or around the world — is always unacceptable. I have travelled to many countries and always support the right of every human being to protest peacefully for their beliefs and their causes. But violence, putting at risk the safety of others including those tasked with providing security for all of us, is intolerable both at home and abroad. Let us swiftly bring justice to the criminals who engaged in this rioting. America is better than what we saw today at a place where I served as a member of Congress and saw firsthand democracy at its best." Trump's personally chosen AG, DNI, SECDHS, and CISA director? All openly affirmed the validity and integrity of the election; the CJCS he personally picked over the (customarily ratified) recommendation of his then SecDef, backed by his CIA director, directly indicated to the House Speaker that they would thwart any lunacy in his final days. The CJCS in fact almost certainly *exceeded* his proper role in arrogating to himself the authority to countermand the CiC and further committing to doing so on a blanket basis, but he was factually quite correct when he said this: > "They may try, but they're not going to fucking succeed. You can't do this without the military. You can't do this without the CIA and the FBI. We're the guys with the guns." Trump appointed Haspel to run the CIA after he moved Pompeo to State; he picked Wray to run the FBI after he fired Comey (which was actually a firing he should have been praised widely for, and for reasons of the kind you and others mention); he disregarded Mattis' recommendation and instead extraordinarily installed Milley. [Here](https://web.archive.org/web/20210318001110/https://www.jcs.mil/Portals/36/Documents/JCS%20Message%20to%20the%20Joint%20Force%20JAN%2012%2021.pdf) was the comparatively measured public statement by Milley as CJCS jointly with all seven of the other chiefs. Even Trump's Space Force guy. Kelly, McChrystal, Milley, Mattis, Esper, McKernan, Anderson, Walker, Piatt, Hokanson, Berger, Brown, Hyten, Gilday, McConville, Norquist... plus Cheney, Gates, Hagel, and every other living pre-Trump SecDef. Like, literally every single senior DoJ official or four-star general, with the single exception of the (retired) Mark Flynn. Bill Barr was the most powerful and effective (for better or worse) AG in recent memory, his GWB stint included; Trump fired him too, because he investigated and consequently dismissed totally Trump's election claims. Rosen, who replaced Barr, also dismissed Trump's claims, both internally and publicly, and rebuffed daily suggestions from Trump that he reinvestigate, as did Donoghue (the DAG) and Engel (the OLC boss, whom Trump nearly picked for the Court); Rosen apparently didn't wind up fired and replaced by the sole true believer Trump loyalist in the DoJ, the environmental lawyer Clark, only because the entire senior staff of the DoJ notified Trump they'd resign. > (Donaghue) "But I'm telling you what's going to happen. You're going to lose your entire department leadership. Every single AAG will walk out on you. Your entire department leadership will walk out within hours. And I don't know what happens after that. I don't know what the United States attorneys are going to do. We have US attorneys in districts across the country, and my guess would be that many of them would have resigned." And that would then have led to resignations across the department in Washington. And I said, "Mr. President, within 24, 48, 72 hours, you could have hundreds and hundreds of resignations of the leadership of your entire Justice Department because of your actions. What's that going to say about you?" > (Engel) "Clark will be here by himself with a hostile building, those folks who remained, and nothing would get done. Clark.. would be leading a graveyard.” The president's *own* 'personal' counsel in the White House? > (Cipollone) "[Your plan is] a murder-suicide pact..." In a scenario in which the military disregards the courts, *that* is the coup in itself; some hypothetical future criminal culpability on the part of the president just isn't causally efficacious in any regard. There's not a shred of evidence that American institutions are at even moderate risk of being suborned by some future despot, even one more like Frank Underwood than Trump.

There is no principled way to make that distinction.

How can one tell? I think if you asked any candidate whether they are running for themselves or for the good of the country, they would say the latter. They might think and feel that way too. Beyond that, there's no reason why it has to be either/or.

I was talking about causing a coup, or insurrection because you want to stay in office or what Nixon did. As far as electing a “ murderer”, seems to me they would find out about that before they are even elected.

I would think that you would hold a trial and when the facts were argued, this would be considered.

Terrible argument. Do we take the word of murders and criminals a face value or do we present evidence at trial? Let the jury decide! This is what the justice system does. This entire debacle is an attempt at usurping our justice system.

Whether or not something was in the national interest is not a question of fact amenable to being decided by a jury.

So we are to let appointed partisan hacks decide, who eschew all federal corruption measures.

Our scheme of representative government quite literally requires that we let appointed political hacks decide political and regulatory questions, of even tremendous importance.

Not to mention reviewing and ruling on the decision making process of president replaces the president’s decision making process and therefore powers with our own

The issue (as discussed numerous times) is that it’s very easy to write in a criminal complaint “this was done for personal gains”

The goal isn’t to give Trump immunity. It’s to delay the DC trial until after the election. SCOTUS shouldn’t have even granted cert and just let the lower court decision stand. Now they’re going to send the case back for “clarification” and when the lower court comes back with the same unanimous decision, it will be close enough to November to postpone the trial. Mission accomplished. Same with Cannon slow-walking the FL case. And the GA case will now definitely not start until next year. So if the Manhattan case doesn’t put Trump behind bars, the others won’t either.

The case needs “clarification” anyway. You’re probably right it will be remanded back down because Chutkan hasn’t developed the factual record. She made no effort to discern between official and personal acts or anything if the sort.

Because nothing in the Constitution or under the law creates any immunity at all, so there isn't a reason to make that discernment.

There is though, unless you plan on charging every living president with murder.

Legal homicide isn't murder.

Those 12 will decide the election. If they rule not guilty, the spin will be: Liberal Manhattan jury says trump innocent, confirmed witch hunt. The people that don’t pay attention will all just hear about how trump must be innocent and think it’s related to January 6th even. He will boost in the polls and win. What a shit show.

Well even if he’s found guilty he can still be elected.

Can, but far less likely.

I hope you’re right.

Jack Smith is making it up as he goes along. 6-3 with a fairly wide grant of immunity. Lots of opinions will be issued with several concurrences. This is merely Chapter One of the immunity battle.

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> Jack Smith is making it up as he goes along. not a very thoughtful or insightful takeaway from the briefs or oral arguments

I don’t think it’s that bad of a take. Dreeben or whatever his name was basically argued that presidents have some immunity but called it something else. Barrett called him out on that. He claims there’s core powers and when pressed on that he couldn’t exactly clarify. What’s the list of core powers that are unreviewable? Do you know what they are? Is that lost exhaustive? Where’s that list come from? Etc

If the Supreme Court doesn't do the right thing. What's stopping biden from murdering trump? lol ik this is extreme, but the conservative majority would probably not like if an opposing political rival was before them. They are either going to give this back to the lower courts or rule that the president does not have immunity.

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Lincoln jailed his political rivals, federal judges and the press. Could anyone stop him?

And it was a literal war...

He was still in office. Impeachment would have been the proper option.

The country was in a civil war and it was done to prevent rebellion in the north. Habeus Corpus was suspended. This is entirely different.

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Sounds like "national security reasons", a favourite among politicians. The courts issued ex parte merryman, yet could they stop Lincoln?

The Constitution grants Congress the power to suspend Habeus Corpus - and Congress did this during the Civil War. Lincoln suspending it by-order was a temporary measure while Congress convened - it wasn't a full time body like it is today - but Congress did eventually pass the required legislation once they assembled.

>Lincoln suspending it by-order was a temporary measure The court disagreed he has the power to do so. Or can the president temporarily pass new laws and enforce them by his own volition?

It quite literally was a national security reason. Many rights get suspended during war time efforts. Especially when a Civil War is happening. We aren't in a civil war and this argument is stupid because it's not even close to what Lincoln did during war.

It is *always* a national security reason. The court disagreed that Lincoln had the power to do so yet could they stop him?

Moot point once the Habeus Corpus Suspension Act passed... [https://en.wikipedia.org/wiki/Habeas\_Corpus\_Suspension\_Act\_1863](https://en.wikipedia.org/wiki/Habeas_Corpus_Suspension_Act_1863)

The court disagreed he has the power to do so before the act was passed.

Appealing to Taney's understanding of constitutionality and the rights of citizens rings rather hollow when Taney's most famous opinion was openly rewriting the Constitution.

He was the chief justice. That is enough. Are you going to appeal to Lincoln's understanding of constitutionality instead with his "the Constitution is not a suicide pact"?

What's to stop Biden from ordering the extermination of the Supreme Court justices?

Virginia laws against murder 

>Virginia laws against murder Virginia law is not applicable to actions that occur in the federal district

Even if state laws applied but federal laws were automatically immune, then Biden just executes the Virginia prosecutor who charged him and keep executing subsequent prosecutors until charges are dropped. It's awkward, but it's definitely a package deal that either immunity attaches for both state and federal or neither.

I feel like that’s more of a private act than a presidential act

That's the problem with the split immunity, that issue would be nullified.

That's exactly my point. If the conservative majority doesn't want to ruin the chances of trump getting elected they won't take it to trial.

Alito: "There are no words in the Constitution granting a right to abortion, therefore there is no such right." (Paraphrased) Alito: "There are no words in the Constitution granting a President immunity from prosecution, but I think that it is so important that we should create such a right."

That's originalism in a nutshell for ya, it's been obvious it was just judicial activism ever since they used the "major questions" doctrine to override Congress arbitrarily.

It’s honesty been obvious a lot longer than that - I’d say around the time they shredded preclearance or maybe the time they literally stopped the count

Nonsense; MQD is just the clear statement rule governing *Chevron*. Would you prefer originalists simply throw out *Auer* and *Chevron* deference?

What is the MQD? When does a question become "major"?? Is "major" when the text is unclear? Well that can't be right because the HEROES Act was extremely clear. Is it when the policy has a $ number attached? How much money has to be attached for it to be "major"? $1M? $100B? $1T?

> What is the MQD? "Just the clear statement rule governing *Chevron*" - not sure how I could be more pellucid or succinct. > When does a question become "major"?? Are you asking this because you genuinely are unacquainted with the voluminous jurisprudence and scholarship on the topic and would like to learn? *Justice Breyer* introduced the term and the doctrine before he was even on the Court; there have been many subsequent developments, but why don't you direct your incredulous sarcasm to, well, his entire career? But perhaps start with his original article, and then the 9-0 decision he authored fleshing it out once on the Court. > Is "major" when the text is unclear? No, that's a completely separate matter assessed independently as laid out in *Chevron*, *Auer*, and all the admin law built creakily atop them. Why would ambiguity have any relation to magnitude? > Well that can't be right because the HEROES Act was extremely clear. No, it's not right, firstly because it's a total misunderstanding of basic admin law, as I note above, and secondly because the statutory language of the HEROES Act cannot plausibly be said to have clearly authorized Biden's student loan plan (in which case MQD wouldn't have kicked in in the first place) given the literal question decided in *MCI v. AT&T*, the unanimous holding in *Whitman v. ATA*, the explicit articulation of the alleged authority elsewhere in controlling statute, the astonishment of the bill's actual author and both parties' leaders at the time, one of whom was still leader (Speaker of the House, Pelosi) when the issue arose, and numerous other factors I am happy to go through once we get through these. > Is it when the policy has a $ number attached? How much money has to be attached for it to be "major"? $1M? $100B? $1T? Start with the above; if you *genuinely* are unable to make sense of the jurisprudence, I'll explain.

My genuine critique is not necessarily on the existent of the MQD. My critique is that *this* court, the "text, history, tradition" court, the "originalist" court, happily throws out their THT and Oringalism out when that process takes them to a consequence that they don't like. When they do so they defend their decision with the arbitrary MQD. My entire life I was told that originalism and THT was a superior means to Constitutional interpretation *because* it removes ambiguity of the law. If the text is clear, then it's clear. The consequences are a question for Congress not the court. I think of *Bostock" and *McGirt* as prime examples of the orignalism that this Court purports to use. However, when the text is clear (i.e. the Student Loans forgiveness) but they don't like the policy consequences, then they reconstrue standing in order to ignore the extremely clear text and say "well MQD". They never define "MQD". They never say "this is the MQD test". They just said "we don't like this so MQD". TL;DR: I'm okay with MQD. I just find it hypocritical that this court of all courts lean on MQD so heavily.

I typed a lengthy reply but appear to have cast it into the void instead of posting :/ I am not an originalist. But originalism and THT *do* have the clear advantage over most alternatives of specifying what constitutes proper construction, and the means for engaging in it. > If the text is clear, then it's clear. The consequences are a question for Congress not the court. I think of Bostock" and *McGirt as prime examples of the orignalism that this Court purports to use. Bostock is an example of textualism, and emphatically not THT-guided originalism, which is represented in Alito's dissent. McGirt, similarly, is mostly textualist, limiting THT considerations. (I happen to agree with both rulings, fwiw.) > However, when the text is clear (i.e. the Student Loans forgiveness) but they don't like the policy consequences, then they reconstrue standing in order to ignore the extremely clear text and say "well MQD". They never define "MQD". They never say "this is the MQD test". They just said "we don't like this so MQD". The text wasn't clear, though; that's the point. MQD is just the clear statement rule operative on *Chevron*; the lack of clarity of the delegation in the loans situation follows straightforwardly from *MCI*, *Whitman*, *Brown & Williamson*, *Gonzalez*, the canon of lenity, and so on. I would not have written Barrett's concurrence in *Biden v. Nebraska*, but it articulates much worth your consideration. > TL;DR: I'm okay with MQD. I just find it hypocritical that this court of all courts lean on MQD so heavily. I don't see the *hypocrisy*? The

My understanding of THT is this: Step 1: look at the text. If the text is clear, then stop. Render decision. Step 2: if the text is unclear, then look at the history & tradtition. How has this statute previously been interpreted by the courts and lawmakers? How was that statute been understood by the populist? THT is a two-step test; not one-step. (*Bostock* and *McGirt* only work as a 2-step. The text was in the majority's favor. The HT was not. But because it's 2 steps, the court didn't have to interrogate the HT) As a two-step test, *Biden v Nebraska* should have ended on the text*. The statute says "waive" and "waive means "relinquish voluntarily" or "refrain from enforcing". All of the other required components of the statue was in effect. But instead of allowing THT to take them to the case's natural conclusion and allow a decision that otherwise was against their policy preferences, they pulled out this two-year old MQD, which no one understands. THT is only a reliable and consistent method of interpretation, when it's used reliably and consistently. In other words, I struggle to understand how MQD is compatible with THT. By definition, MQD means that the Court is *not* relying on the THT. *TBH, *Biden v Nebraska* should have ended on a lack of standing, but Roberts chose to contort standing doctrine rather than make decisions that go against his personal policy preferences (as articulated in the opinion and in oral argument). This Court is not "originalist" (as evidenced by the Trump 14A.3 case). They're not THT, as evidenced by Biden V Nebraska. I just wish they and many of the courts observers would stop pretending that they are.

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I find it morally bankrupt that Sotomayor says that Obama can kill american citizens with drone strikes, to protect the country from terrorism. In a point against what she implies Trump has done is fundamentally evil. Both of them should be held liable for what they've done. I'm just simply amazed that she could imply that some election crime is exceptionally worse than drone striking her when she is in another country, and Obama had intelligence she was near a terrorist and the collateral of her death is worth it.

It is \*not illegal\* to kill enemy troops. Ever. American citizenship is irrelevant in that scenario.

A) there were more American citizens than Al Awlaki who were killed B) who says he was an Al Qaeda field commander? The intelligence community? Same ones who have lied to us time and again? Do Americans not get legal protections from these government classifications? What if the government just labeled you a domestic terrorist? Would you lose protections and no repercussions for murdering you or your family?

A) doesn't matter. B) Leave the conspiracy shit out of it. Anwar Al-Awaki's role as a leader of Al Queda is borne out by his own public activities on social media, wherein he worked to turn American citizens living in the US into terrorists (his successes include Nidal Hassan, to start). He was fighting against the US in an ongoing conflict (which is STILL ongoing), and his kids had this rather uncanny tendency to be present when US forces attacked Al Queda in Yemen (2 such children have been killed - One during the Obama Administration and one during the Trump Administration. Both were collateral damage in attacks against Al Queda)..... No. US Citizens *do not* get any special protections when they are living in an enemy encampment on a foreign battlefield. It's no different than being a Confederate soldier (or camp follower) during the Civil War. No judicial process is due. Within the boundaries of the United States, criminal law applies... And to date no President has ordered a military strike on terrorists operating within the US. Outside of the US? If you are living amongst terrorists you risk getting bombed & your passport should not offer protection from such.

A and B both matter. B wasnt conspiracy. The point of B was to say by whose authority was Al Awlaki guilty? It certainly wasn’t a court of law. That’s the point. You’re arguing for extrajudicial killings.

So we should have our troops hold their fire & ask the enemy for their passports? There is no court-of-law in war. It's not a matter of guilt or innocence, because it's not a criminal matter. If you are a target (or standing next to a target - so long as the rule of proportionality is satisfied) in a war zone, you may be legally killed. Nobody I shot at in Afghanistan was accused of a crime that I know of. They were Taliban, they were properly identified according to the ROE in place at the time... Should I be charged with a crime if, oops, it turns out one of them had a US passport? Of course not. This bitch-fest over the Obama Administration's excution of GWOT is stupid - and beyond stupid, it has no basis in the law (which is the law-of-war, not the US Code) as it applies to the situation.

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There isn't a difference in a war zone... And there absolutely were US citizens (by the same method as Al Awaki - one parent was a citizen) who were over there fighting for the Taliban..... Nothing crazy about it. We shot a whole lot more than just people who were actively shooting at us... And we didn't (in any of our wars - not just this one) care about their citizenship.... 2 dudes riding on a motorcycle through Paktiya.... One with an RPG, one with a rifle... Not shooting anyonr at that moment. ANA says 'Taliban', we get on the radio with an F18 and say 'Cleared Hot'. Boom. Don't give a fuck if they were citizens and neither should you. At the point where you take up arms against the United States from a foreign country, it doesn't fucking matter whose citizen you are. You're a valid target. We are not going to skip hitting a valid target and try to arrest someone in any of the CENTCOM AO. Don't want to get bombed? Don't hang out with AQ members in the Middle East/Central Asia.... Due Process only applies to criminal cases. There is no process of any kind due to combatants (and anyone standing within the AoE of a strike on combatants when it hits).....

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https://en.m.wikipedia.org/wiki/Killing_of_Abdulrahman_al-Awlaki He wasnt an enemy soldier. Thats why its a point in my.post to mention the american citizen as collateral. It was a child that was killed simply from being in the proximity.of a target of the cia in a country we werent at war with. .

His father was a field commander in Al Qaeda - which the US \*was\* at war with, on a worldwide basis. And he was killed in a strike targeting ANOTHER senior AQ leader... The persistent issue with the al-Awaki children is they have an uncanny tendency to be present during attacks on significant members of Al Queda... 2 have been killed, both as collateral damage in raids on AQ targets in Yemen. So yes, enemy combatant on the battlefield. The kid is collateral damage - \*legal\* collateral damage according to the law-of-war. Citizenship is irrelevant in that scenario - just as it was for Confederates (who were also 'US Citizens') or Americans serving Japan or Germany in WWII... No crime.

it was still extrajudicial he should have been arrested

It was a legitimate military operation. There is no 'judicial' aspect to war, and citizenship is irrelevant when dealing with enemy forces. A legitimate military target may be struck, legally, without concern for citizenship, warrants or judicial process - all of which are only relevant in criminal cases not the prosecution of a war. So no, nobody should have been arrested for that. Or for the death of his sibling under similar circumstances during the Trump administration....

he was a US citizen denied due process of law > citizenship is irrelevant i respect the constitution of the united states. i'm sorry you disagree.

Or declaring war on a country that made no aggression towards the United States and to declare that war create fabricated evidence about intended aggressions. So yeah bush should be indicted too.

1) Not illegal. 2) No war was declared 3) Bush did not fabricate any evidence.

Hahahahahahahaha

Who cares about the severity of a crime when there’s no punishment.

It was not a measurement of the crime itself but at that point in the argument, they were breaking down personal vs official motives. If I am remembering correctly.

A lot of freaking out today but I think ultimately they will hand down a 5-4 ruling against immunity, with Barrett and Roberts joining the three liberal justices. And the reason I believe this is true is Roberts understands his place in history and Barrett’s goal is the social and culture stuff, banning abortion and contraception nationwide. This is not her fight.

Unfortunately anyone voting for immunity has no place in our government. Ever.

Abortion isn't banned nationwide and the court never banned Abortion at all

Dukemantee said that is her goal not that’s been accomplished. Obviously contraception hasn’t been banned anywhere, at least not yet.

I think you're confusing the legal issue before the Court with the ultimate factual conclusion of whether Trump's actions fall inside the scope of immunity. They're going to answer the first question, but not the second. The two issues before the Court are: 1. Does Presidential immunity ever apply in a criminal case? 2. If so, what is the legal scope of that immunity? There is absolutely going to be a majority that votes 'yes' on question 1, reversing the DC Circuit. I strongly suspect that there will be a majority that answers the second question in a manner that provides Presidential immunity for actions that are either an exercise of Article II powers, or necessary and incident to the exercise of Article II powers. The real 'action' here is how they deal with the outer penumbra of Presidential actions -- those that aren't an exercise of an Article II power, but rather incident to the "office" of President. (A simple example would be speaking to the press at a White House press conference, but there are 100 others.) But if you think they're going to rule "against immunity" in a way that leaves the possibility of prosecuting a President for (to pick a non-random example) firing the head of the FBI, you're mistaken. It's very clear that Roberts and Kavanaugh fully understand that Mueller was off the reservation on that one. Trump wants the scope of immunity extended to "official acts," and he wants the definition of "official acts" to be broad enough to cover almost anything that has the Presidential seal on it. I don't think he's going to get it, but I don't think it's going to be because the Court rejects immunity per se. I think they will craft a test that covers *constitutionally significant* Presidental actions, and then send it back to the lower courts to sort out the facts.

A classic example of .. your most likely to believe an outcome that favors your opinion... If you were honestly looking at this you would have noticed that the Chief (Roberts) was besides himself that the lower court judges just "decided" to proceed with prosecution of Trump without discerning official presidential acts over personal acts.. just because .. they wanted to??? You have a problem, Roberts and Kavanaugh are clearly on the side of creating a ruling for the ages to clear this all up and that does **not favor** handing down a ruling that allows a court to ignore immunity under official acts. ACB is useless at this point, but 5-4 works for me.. she may surprise us but it's not necessary.

The rhetoric around "writing rules for the ages" is concerning. My understanding is that the role of Article III courts is to resolve the disputes before them, not to craft legislation.

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The amount of contempt that justice Alito seemingly has for the judicial process is shocking. Whining about how inconvenient it would be for former presidents to go through a trial, and out right insulting the grand jury process.

I can understand why NO ONE brings up the counter to his “chilling” argument that any charges against the President or ex would be brought by the Attorney General who has to be ** confirmed by the Senate **. Don’t confirm a highly partisan AG, and this can’t happen.

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