@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/
@interfluidity Yes and that is itself problematic, that is one thing that's being highlighted by this whole case, the mess that we have made with criminal law over the generations.
Criminal law has really wound itself up into a ball, and we're going to have to deal with that going into the future.
It was always a house of cards. We're beginning to see how it crumbles.
So we have these legal grants of authority that didn't involve motivation running up against criminal law that does involve motivation, and you see what a mess that is?
That's what the Supreme Court is dealing with here, the mess of law that has been created through statute. Aunt this is really just reflecting the mess that has been made of it all.
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika
@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika I don’t understand why, if the issue is criminal law as a whole is such a terrible mess, it should crumble only for the President of the United States while the rest of us remain on the hook.
That seems like a very particular, engineered outcome, not the result of sone unwieldy chaotic accretion over the centuries.
@interfluidity It doesn't only crumble for the president of the United States. That's not what happened.
In fact, a whole lot of people are pissed off that that's not what happened.
The Supreme Court didn't judge Trump. That's not its role in the system. That's for lower courts. Instead, the Supreme Court issued an opinion that applies to everybody, with a general rule that really applies to officers in general.
The Supreme Court said that the the executive branch may not prosecute anybody for carrying out their legal duties as per law. No matter the mess that might exist out there, the president cannot, effectively, harass people for doing what is legal.
That's the long and short of it.
It was basically saying that no matter what mess the criminal statutes may be, the president may not harass people for doing legal things.
I remember hearing all of the criticisms of the court after oral argument when people were pulling their hair out that justices weren't laser focused on getting Trump. But they weren't because that's not their job.
So you say you don't know why it would crumble only for the president, and that's not the case, it doesn't, the Supreme Court laid out a general rule regardless of the people complaining that it was looking to lay out a general rule.
And regardless of the dissenters who often seem completely oblivious of what the Supreme Court is supposed to do in the first place.
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika
@interfluidity Oh we are!
This decision reinforces the idea that invalid prosecutions need to be nipped in the bud. This is a restatement of the idea that when the administration takes a run at anybody without a valid process, that has to be kicked out of court right away without having to go through trial and appeals process.
This decision does apply to all of us, most directly to any government officials, but more generally to all of us if the administration tries to charge someone without solid legal basis.
Again, that's why despite criticism the Supreme Court was looking to a general rule and not focusing on Trump himself, because this rule applies to all of us.
@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika
@volkris @interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika
> This decision reinforces the idea that invalid prosecutions need to be nipped in the bud.
How does it do that?
@realcaseyrollins@noauthority.social
I might be repeating myself, I can't keep track, but when people talk about this being about immunity, too often they don't specify immunity from what.
This is not immunity from punishment. This is immunity from prosecution.
The accused could always go through the whole process, go through the prosecution go through trial get convicted and then appeal and go through the case involved in the appeal. That doesn't really change here.
What changes here is that the court clarified that you can't even prosecute someone, much less bring them to trial. This clarifies that a person accused without legal basis doesn't have to go through the whole rigmarole, they can immediately halt all of the proceedings at the beginning, with needing to go through the whole thing to get to appeals.
So that's why I say this nips it in the bud. And that's the major result.
This whole thing was purely procedural. And it clarified the procedure of avoiding a legally invalid prosecution, before court.
@interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika it nips the whole thing in the bud, but only for the President and thosr he pardons, and irrespective of whether the President did the crime or not. obviously, without prosecution there is also no punishment. it nips it all away, only for the President and those He pardons.
@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika it does not. it grants immunities to the President (and anyone He pardons). none to the rest of us.
@volkris @interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika I suppose there is some truth to this, apparently it's legal for #Democrat members of state judiciaries to target #Trump out of animosity, so it would be only fair for #Trump to have the same power.
Still, if the true impact of the ruling is that presidents can have people prosecuted even if they don't think they broke the law because they hate them that's a problem
@realcaseyrollins@noauthority.social
Right, the true impact of this ruling is to bind the hands of the administration against prosecuting people without legal basis, and that goes both ways.
Heaven forbid Trump get elected president, this ruling prevents Trump from prosecuting Biden for his policies on immigration.
@interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika
@volkris @interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika That's a good thing, I suppose, but I'm not sure that it prevents #Trump from prosecuting #JoeBiden for prior crimes for malicious reasons, or #JoeBiden from prosecuting #Trump
@realcaseyrollins@noauthority.social this prevents Trump from prosecuting Biden over legal actions that he took.
Biden would still be susceptible to prosecution over illegal actions, just as this ruling says Trump is susceptible to prosecution over his illegal actions.
But I would mainly focus on how this prevents Trump from prosecuting Biden over things like border policy since so many Republicans are chomping at the bit to haul him into court over that specifically.
@interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika I would like to see Biden prosecuted over any actions that are plausibly alleged to be illegal abuses of power. I don’t think those prosecutions would succeed, because I think Biden’s actions (largely inactions) have been well within his discretion. But if there really has been an illegal abuse of power, then he absolutely should be held accountable for it.
@interfluidity Yeah exactly, and that's what the court said.
Keep in mind that it is entirely within the right of Congress to impeach and Biden over things he shouldn't have done, legal or illegal, but so long as he was operating within the bounds of what the law says he could do, the next president cannot go after him.
This Supreme Court ruling is actually extremely common sense and honestly kind of boring, and yet people are sensationalizing it way out of bounds of what it actually said.
But that's just normal. That's just the state of journalism these days, they flat out say things that are contradicted by the primary record, and they get away with it.
@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika dude. i’m not the state of journalism. i’m an american and a civil libertarian who has read this decision in full and carefully considered it, and in my view it amounts to nothing less than a coup substantially upending the Constitutional order.
@interfluidity how do you get to that conclusion?
The decision merely points out that in support of our civil liberties the Constitutional order limits the ability for presidents to prosecute.
@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika
@volkris @interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika Yeah I understand concern around the ruling--I had my own concerns about it before this exchange, although I wasn't pessimistic about them--but saying that this #SCOTUS ruling was a coup is a weird take, if we're using the literal definition of the word "coup".
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika no. it expands the ability of Presidents to prosecute everybody but ex-Presidents for official acts.
i think i’ve devoted all the time i can to explaining why i think this is an invitation to Presidential lawlessness and abuse.
@interfluidity where exactly do you see any expansion of prosecution authority?
As you seem to recognize, it does limit the ability to prosecute for official acts, which was my point, but where do you find a separate expansion in the ruling?
@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika yes. it limits prosecution of official acts by the president. which means it enables malicious prosecution by the president, as long as he keeps the maliciousness discrete so it is presumptively an official act whose motive cannot be inquired into.
If the maliciousness is so discrete as to be so undetectable, then this ruling doesn't really expand anything: if supposed illegality is so gossamer then prosecution over prosecution wouldn't be in the cards in either case.
Certainly it wouldn't apply to the end of the world, torches everywhere images that people are trying to dream up.
In the end, though, if law authorizes malicious prosecution, then we really need to fix the law that's granting that option in the first place as it's granting the president too much authority.
Or, if there is no such law, then again, this ruling doesn't apply.
@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika
@volkris @interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika
> In the end, though, if law authorizes malicious prosecution, then we really need to fix the law that’s granting that option in the first place as it’s granting the president too much authority.
Does #Congress have the right to amend the #POTUS' powers in this way? If so, that seems to be the way forward.
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika the Supreme Court read this decision into the Constitution itself. Congress cannot alter it. indeed, it is based on “separation of powers” explicitly — the idea that the President has prerogatives Congress cannot regulate. 1/
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika the only remedies are (1) the Supreme Court (perhaps after some personnel changes or additions) revisits and revises/reverses; (2) a Constitutional amendment overrules the Supreme Court; (3) we revisit the Supreme Court’s authority to overrule other branches via judicial review, in place since Marbury v Madison (1803). /fin
@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika After listening to #Destiny reading the majority opinion, part of me understands the reasoning for their ruling here. I am not sure that there is anything in the #Constitution about using Constitutional powers "for bad" or "for bad reasons". Both are encompassed under official powers, which we probably don't want to be prosecutable.
@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika If we want to amend the #Constitution with "don't be a bad guy, #POTUS" clauses, that wouldn't be the worst thing in the world considering how broad or narrow such amendments might be, but I think I'd rather have immunity for all official acts of a #POTUS than no immunity for official acts of a #POTUS, especially since relevant abuses seem to be narrow loopholes in the ruling.
@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika TL;DR the #Constitution allowing for things you don't like isn't the same as #SCOTUS giving a bad ruling, people mad at the ruling should propose a constitutional amendment rather than getting mad at #SCOTUS
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika except SCOTUS just made this whole framework up. it is written nowhere in the Constitution, prior Supreme Courts and almost all legal scholars did not find its logic implicit in the Constitution. John Roberts invented it and now it is supreme law of the land.
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika we do want them prosecutable, though. the bar to successful prosecution should be very high. Justice Jackson emphasizes in her dissent all the hurdles a successful prosecution has to overcome, all the ordinary defenses well resourced defendants generally have against criminal prosecution, plus public action defenses only available to public officials.
@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika The lawfare against #Trump has proven that the bar for prosecution may be lowered arbitrarily.
We want #POTUS to be prosecutable, for sure, but probably not for official acts. I don't think I want my #POTUS hit with a #RICO charge for ordering the military to strike terrorists lol
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika Trump was not prosecuted for military action. He, like Obama before him, engaged extensively in drone assassination, and that was fine as far as the law and the Biden DOJ were concerned. The public action / public authority defense was already very capacious, a very high bar to clear!
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika that law is this ruling. this ruling immunizes malicious prosecution from any examination into motive and ultimately from any accountability. unless it is a prosecution of a former President for an “official act”, whether that is malicious or merited. 1/
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika the Supreme Court provided a pathway and a roadmap for Presidents to maliciously prosecute rivals or anyone else with no possibility of accountability. except those former Presidents / official acts. /fin
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika it prevents Trump from prosecuting Biden, with or without basis.
it enables Trump or Biden to prosecute anyone and everyone else, also with or without basis.
@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika I'm fine with anyone being prosecuted TBH, but it's not clear to see a way that this #SCOTUS ruling prevents what various #TDS sufferers in state judiciaries have done to #Trump from being done to other people by a future #POTUS.
@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika
To be fair, I don't think this is a marked change in #USA policy; #Obama likely had #JamesComey clear #HillaryClinton of wrongdoing ahead of the 2016 election, and #Trump heavily insinuated that he had the power to have the #FBI go after #HillaryClinton after he got elected, to minimal backlash from legal experts at least from what I noticed at the time
@interfluidity @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika #Trump rightly decided that it would not be good to weaponize judiciaries against his political enemies. Unfortunate that #Trump's enemies do not see things the same way.
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika if you think Trump's prosecutions are unfounded and malicious, this decision will prevent similar prosecutions of ex-presidents, but it certainly won't prevent unfounded or malicious prosecutions of anyone else. 1/
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika (actually, it won't even prevent unfounded or malicious prosecutions of ex-presidents based on ginned up allegations about pre- or post-Presidential unofficial acts! so if you really think weaponized prosecution of political rivals is the problem — which John Roberts plainly does! — this decision narrows the target but increases the range!) 2/
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika (it may thus be ineffective on its own terms!) /fin
@realcaseyrollins@noauthority.social
If you're fine with administration prosecuting anyone, well, that's just the sort of thing that I'm going to simply disagree with.
Personally I don't think we should allow presidents, including Trump, to go after their enemies with unfounded prosecutions.
But that's just me.
@interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika
@volkris @interfluidity @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika You say that as if we disagree on this point lol
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika baseless prosecutions can be dismissed. it’s hard to win a criminal prosecution against a person with resources to defend themselves, even when the accused is guilty, let alone when the prosecution is baseless.
but there’s no remedy for a lawless president immune from prosecution.
we just disagree, pretty strongly, about the balance of harms. 1/
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika and the balance of benefits, since a President can no go after his predecessor with full immunity if the prosecution is malicious, He just has to dig up dirt from before or after the predecessor’s term so the immunity for official acts no longer applies. even the revenge prosecutions the decision purports to remedy is not actually remedied. /fin
@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika i mean, yeah, i agree, this puts us all at risk.
but the enforceability of criminal law crumbles only for the President here. the rest of us are granted no immunity from the accreted skein of criminal law.