@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika We already know, I think, that the mere public act of a pardon subsequent to some nice "donations" is insufficient in practice to establish a bribe. In fact, this Supreme Court has dramatically tightened standards, clarified that only a clear quid-pro-quo is actionable, outright legalized after-the-fact gratuities to state and local officials. 7/
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Note that neither Amy Coney Barrett nor John Roberts relied upon the possibility that motive might leak. Evidence of motive (I think!) already exists in Jack Smith's case against Trump. The Court does not consider it, I think because it's now inadmissible, under the may-not-inquire-into-motives standards. 8/
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika But suppose evidence of motive was just brazenly public? A whistle-blower leaks a memo to the New York Times, in which a President (idiotically) instructs a pardon be issued in consideration of the spouse's loyal financial support. 9/
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika I don't think, under this decision, that changes anything. The Court may not inquire. To bring a public New York Times article into evidence, for the prosecutor to subpoena from the Times a copy, to validate it by interviewing and examining its author or the reporter would be the court inquiring into motive. 10/
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika And without some degree of validation, some degree of "inquiry", even what is fully public can only be rumor and hearsay to a court of law. I don't think the court would be able to take into account information about motive that "everybody knows", because converting common knowledge to vetted evidence would be a inquiry to far. 11/
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika John Roberts seems to suggest that at least conjectures or allegations about motive might have a role (how else could the mere public act of a pardon become the *quo* of quid-pro-quo?), but i think a plain reading of "courts may not inquire into the President's motives" would also prohibit entertaining conjectures and allegations about motive. 12/
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika And even if it did not, how could mere conjecture and allegation form the basis of any criminal prosecution? /fin
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika You also wonder, what if it's not a leak, what if the President himself states his motive on the public record somehow? Could courts at least use that, in deciding whether an act was an official act?
I don't know! 1a/
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika The way I characterize this decision is not that it's automatic immunity for anything a President does. Trump, if he loses the election, might still be on the hook, because some of the allegations against him involve actions that may well be unofficial acts. 2a/
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika What the decision is is a *roadmap* to Presidents who want to break the law and get away with it. It's fine to instruct your Attorney General to gin up a prosecution against a political opponent. Your discussions and prosecutorial decisions have absolute immunity. 2b/
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Even with several of your too-charitable-I-think reading of a limitation in the taking-Care clause, there'd be no way to demonstrate that the prosecutorial decisionmaking was out of bounds without any ability of courts to inquire into motive, even when there is a credible allegation of lawbreaking. 2c/
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika But Presidents can still do stupid stuff and get in trouble. If the President instructed his driver to mow down a Congressperson he disliked, Courts would probably pretty easily find that an unofficial act. 2d/
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Openly confessing a corrupt motive for actions that would otherwise enjoy immunity I think falls into that category. Yes, there are still ways that a President can be stupid or careless and shed His immunity. But the decision presents a clear roadmap, which if followed, permits a President to act very flexibly without deference to general law, with no way for Congress to regulate or the courts hold accountable. /2fin
There is so much focus on motive, but the thing is, the law so often doesn't really care about motive, and that's part of the point.
We have law that gives presidents authorization to act regardless of why they are acting. Maybe we should change those laws. Maybe we should change the law to consider motive, although I would say that is a really thorny direction to go, but that's what we have right now.
The Supreme Court is pointing out that our democratic process produced law that doesn't care about motive. The Supreme Court is merely respecting that outcome.
Again, we can reform that if we want. We can change the law if we want. It would be a democratic process that in some cases involves constitutional amendment, but we have that power.
In the end, until we make that change, though, this is the law. The Supreme Court is merely working with what we have today, not how you or I might want the law to be.
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika
@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika Criminal law almost always cares about motive. Mens rea. Please tell me where any act you could call “democratic” removed consideration of motive from criminal law in the case of the President, but no one else. Please. I think the Supreme Court made it up all by itself. 1/
@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika Yes, we can democratically remedy this, but only by a Constitutional anendment, a bar so difficult, that requires such unanimity + consensus that it’s been decades since we’ve pulled one off. (Or, much more likely, by expanding this Court and having a do-over.)
The Supreme Court made this up. Whole cloth. Nothing in existing law prefigured this decision, especially the motive bit. The whole legal world was shocked by it. /fin
Yes it is a bar so difficult that it requires the public to be on board🙂
Welcome to democracy.
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika
@interfluidity Yeah democracy is hard isn't it?
It's a whole lot easier if you can just make rules without worrying about the messiness of the people. But then, that's why we have democracy.
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika
@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika no. democracy does not mean near complete consensus or paralysis. that’s tyranny by the veto power of any small minorities. 1/
@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika we created an antidemocratic tyranny on purpose (although we did not expect it to bind quite as strongly as it has in recent decades) to lock-in the form of democracy the Constitution establishes. we made amending the Constitution antidemocratically hard. 2/
@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika bur Marbury v Madison gave us another way to amend the Constitution, through judicial reinterpretation. And that requires a mere majority among nine imperfect, ideological, corruptible individuals. /fin
@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika there’s the kind of democracy that requires a majority to be on-board, and the kind that requires consensus, all 350 million of us to be on-board. The latter is “democracy” in name only. In reality it is paralysis.