Now the Democrats are using their favorite weapon, the legal system, to go after their latest political opponent -- a sitting Supreme Court Justice. SHAMEFUL. One of the things they are mad about is a gift from 2008. Yes, 16 years ago. These people need to be stopped before they destroy the faith and confidence in all of our institutions, as they abuse them for short-term political gain.
Under the court's majority opinion, it would be a lawful order if given by the President. The President has dictated this person is an enemy of the United States. That's Sotomayor's point. I'd be very curious what the writer thinks of the militaries of countries that have followed dictators or staged coups.
it's really not that difficult: Can the Military Disobey Orders in the SEAL Team 6 Hypothetical? Two reasons for cautious optimism—or at least cautious suspension of outright horror https://www.lawfaremedia.org/article/can-the-military-disobey-orders-in-the-seal-team-6-hypothetical
I would say he is trying to generalize it so it cannot be limited to the specific instance of bribes for pardons, but rather illegal unofficial act related/connected to official act. Either or both. He is talking about evidence of unofficial act and evidence of official acts being introduced in a prosecution. Should apply equally to the President and the person offering the bribe. Core function is about the difference between absolute immunity and rebuttable immunity. Should have no bearing on the evidentiary issue as it relates to unofficial acts (eg accepting a bribe). Then you can't probe the conversations the President had with advisors about the pardon, but you could introduce the fact that a pardon was given (a matter of public record. There is no reason the opinion should say this is how you prosecute bribery for pardons, that was not a case before the court. I certainly agree that Roberts is no originalist and doesn't write from an originalist perspective. I disagree that the outcome doesn't square with the constitution and common law as understood at the time of the founding. The evidence that a bribe was offered and accepted would still be admissible. You still had the ruling backward when you said, "Except that under this ruling a prosecutor might not even be able to use the evidence that a bribe was offered and taken since it was for an official action."
"Cautious optimism" - "[c]autious suspension of outright horror".... Is this really the standard that we are at now in the USA for the SCOTUS? It is amazing to me - watching the erosion of not only right and protections in the USA the last 23 years, but the plummeting confidence and quality of leadership at the highest levels in the US government. We have SCOTUS members making references to debunked conspiracy theories, the Supreme Court essentially giving the future Executive of the Country carte blanche to be corrupt and do anything he wants. We have President's invading nations and lying about the basis for the invasion - we have President's killing US citizens overseas with drones, a President that is a convicted felon and has been accused and had a massive civil suit judgment against for being a chronic sexual assaulter - and a President that is in his 80's and had massive physical and neurological decline. So, we get - "cautious optimism" that the President cannot in the future use the military as his personal army. If the SCOTUS wanted to be clear - they would have been very clear concerning bribes, military actions, etc.... they choose not to be. **** all of you that choose to just excuse it. I feel like I am in Alice in Wonderland. At least in Wonderland they had the excuse of lead poisoning and copious amounts of absinthe. Now the only excuse we have is intellectual laziness and greed. The sad thing is that while idiots cheer that their side won or cry that their side lost - they fail to see everyone loses, because as the situation in the USA becomes more and more contentious and there is less common ground - we are going to see more populism and we are going to start to see extremists that are idealogues or cults of personality run and win -- right now it benefits supporters of Trump, next time it could be a Marxist that is an idealogue and has no issues using those powers to not only line his pockets and satisfy him ego - but to put people in prison and suspend elections.
I don't know when you served but I served from 1980 to 1983--that's five years after the fall of Saigon and nine years after William Calley was convicted. I was closer to Vietnam then, than either of us are now, say, to Obama's re-election. I can assure you that military ethics was a huge topic and Mai Lai was Exhibit One. If an unlawful order is given it must be disobeyed. Does that guarantee anything? no, there will be loose cannons. But I believe it is mostly a Democratic/liberal/lefty fantasy to imagine that a U.S. President is the one who will be going rogue and will be the loose cannon. Trump or no Trump.
Good stuff. On my phone. I'll agree to disagree. I think you're giving too much leeway into the idea that a pardon bribe can be easily prosecuted. The new core powers immunity would make it hard for the briber and super hard for the bribee, hence I'm with ACB here. Her explanation is more clear to me. I think it's a fair reading (as a whole opinion, not just the bribery footnote) for any lower court to interpret pardon bribes evidence to nearly untouchable, more often than not. As to what he has to explain vs what he should explain, you are correct that a bribe case is not before them, but setting up rules and answering questions clearly is done all the time. Thomas set up be 2A rules for under Bruen, and the rest of the court changed them under Rahimi. Roberts is a great writer, and I think leaving the bribery discussion to a confusing footnote (you say not confusing, I say yes, when your answer is "either or both" because that's an assumption that clashes with the numerous pages describing the untouchability of core functions.) So yes, he doesn't have to set clear rules, but a good opinion does. And he is intentionally not being as clear as he can be. And the best reason for that imo is he worries about the overzealous prosecutor extremes that he hypothesized about over the presidential abuse extremes. And if course, this is atextual analysis from the majority based on non-exact precedence.
Ethics being a huge topic isn't terribly assuring to me - the same is true in the legal community, there is constant discussion on ethics and parroting of claims of the profession being ethical - when it is far from ethical. I don't expect the government to come rounding people up and putting them in camps - I don't expect anything, but a continuation of the decline in ethics and accountability for those in the highest office in the USA - with a green light from the highest court in the land. When these doors are opened, they tend to be hard to close - had the same argument after 9-11 and the expansion of executive authority... and then the foolishness of those believing Obama would close the door (he didn't) and it has just been a snowball hurling down the mountain since.
my original point was primarily relaying the essay about Sotomayor's dissent, which I take to be wrong in many of its particulars. I'm okay with leaving it at that.
I understand your point - and my point is that "cautious optimism" concerning whether the SCOTUS opened the door to excuse criminal behavior by the President including the use of the military against his enemies -- is absurd. The fact that we now are that the point of saying essentially, "well maybe that won't happen" shows the entire problem with the decision. We deserve better than that - it isn't acceptable.
I just don't think that's a real fear. I'm not concerned with Biden's senility causing him to kill Trump, and I'm not worried about Trump's craziness to do anything similar. I really don't think the opinion is as radical as folks are making it out to be
I think Josh Blackman's piece on Volokh this morning strikes the right tone https://reason.com/volokh/2024/07/1...ke-a-deep-breath-about-trump-v-united-states/ 5 hours ago [Josh Blackman] Everyone Needs To Take A Deep Breath About Trump v. United States by Josh Blackman [No one asked the Court to reverse Nixon v. Fitzgerald. And the Court found that the civil and criminal contexts cannot be distinguished. The decision should not have been a surprise.] In the aftermath of Trump v. United States, I wrote a series of posts breaking down most facets of the opinion as a doctrinal matter (1, 2, 3, 4, 5, 6, 7, 8). My general impression is that the decision was not premised on original public meaning, but was a mishmash of precedent, pragmatism, and "traditionalism." Yet the reaction was one of stunned outrage! It is the next Roe v. Wade. We need a constitutional amendment to overrule it. We need to pack the Supreme Court! And so on. Never forget, most commentary about the Supreme Court is performative. Critics have a vested interest in making the decisions seem so much worse than they really are. There really should not have been much of a surprise here. First, Nixon v. Fitzgerald has been on the books for decades. That decision established absolute civil immunity for all acts within the "outer perimeter" of the President's duties. No one asked the Court to reconsider Nixon, so that was precedent. During oral argument, Justices Jackson and Sotomayor repeatedly tried to explain why civil immunity made sense, but criminal immunity did not. But the majority disagreed. Critically, the Court found that it would make no sense to provide immunity for civil suits, but not for criminalprosecutions. Indeed, as I noted, the risks from a criminal prosecution of the President are greater than the risk of a civil lawsuit. One the Court declined to distinguish civil and criminal suits, it follows naturally that the absolute immunity recognized in Nixon would apply in the criminal context for Trump. None of this should be surprising. Second, once the Court recognized that there would be absolute immunity for "core" powers, and presumptive immunity for other actions, the Court had to adopt some test. The Fitzgerald Court's "outer perimeter" test was never particularly unhelpful. Instead, Chief Justice Roberts borrowed from Blasingame v. Trump, a precedent from the D.C. Circuit. This case involved a civil suit against President Trump for his role on January 6: 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." Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023) (internal quotation marks omitted); see Fitzgerald, 457 U. S., at 755–756 (noting that we have "refused to draw functional lines finer than history and reason would support"). Given Fitzgerald, and how the lower courts have applied Fitzgerald, the Court was going to have to apply some sort of test to determine immunity. The Court gave some guidance to the lower courts. I don't know how helpful it will be, but the Court here was treading in uncertain territory. Is the framework so unreasonable? Third, I think most of the critics of the decision still believe that the law can constrain a populist presidential candidate. It can't. Alvin Bragg, Jack Smith, Fani Willis, and so on. None of them have made a dent on Trump. The WSJ summed things up nicely: None of this is a vindication of Mr. Trump's conduct or an endorsement of paying off a p*rn star, trying to overturn the 2020 election, or refusing to help a besieged Congress on Jan. 6. But as the past nine years have shown over and over, Mr. Trump's biggest opponents are often his best asset. They convinced themselves he won in 2016 by colluding with Russia, and special counsel Robert Mueller would get to the bottom of it. They impeached him twice. Mr. Trump plowed through it all. It is a fantasy to believe that any test that Chief Justice Roberts could make up would control this president or any other. The law only goes so far. Everyone should take a deep breath. The only way to defeat Trump is at the ballot box. That was true in 2016. That was true in 2020. And it will be true in 2024.
This is like the same way right wingers talk about how "police aren't that bad" by saying the raw number of deaths by law enforcement isn't that high ignoring all the thousand of negative interactions that have nothing to do with murder like illegal search and seizures. Why does the concern only have to be about mercing fools? I mean there are meant severe concerns that can slowly erode the basic competence of this nation that isn't just straight up murder.
My comment was cut off. Nothing is stopping the president from breaking norms and forming a fiercely loyal guard that will do his bidding. The brown shirts or SS might be a better example.
Thank you for saliently providing your opinion. I wish you would do this more often. I don't perse have any issues with your opinion, but more with the flippant headline and tone of the article you posted. As I stated, I don't think the President will start killing his enemies - but I do believe that it gives an out for future Presidents to act criminally and have a reasonable belief that they are free from criminal punishment, and that can snowball based on what I have seen over the last 25 years.
The president doesn’t even have to issue an order. Abusing pardons is all he needs. Just pardon the murderer as Trump and Abbott have already done. And again it seems like you didn’t read the article: “If a president is otherwise unconcerned with political ramifications (that is, impeachment or an election) or his historical legacy, the military agents beneath him in the chain-of-command are the sole obstacle of any significance. This presents a risk that the military serves as guardian and enforcer of the rule of law in ways that courts, Congress, and the president’s personal integrity and political exigency cannot.”
trump called for the execution of general milley and a televised military tribunal for liz cheney. after what he did leading up to and on january 6th i think we need to take his threats seriously. his supporters are clearly listening to him. trump initially said these people are criminals who should be prosecuted to the fullest extent of the law and now he calls them hostages and promises to pardon them.
This is willful ignorance at this point. The stupid coup failed, but it was an attempt, and so far no one in power has paid any price. Project 2025 shows they are making plans for loyalists to be in place in case they are needed.
