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Posse Comitatus restrictions mean it would have to be the Air National Guard carrying out said strike
A Deeply Fractured US
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kkwd
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Biden being Biden he would probably strike when Trump is not even there.
While the order itself would of course be illegal and any other person involved in carrying it out would likely face prosecution, Biden himself would likely enjoy absolute immunity as CinC of the military, an Article II constitutional power of the president. But even if not absolute immunity, he would definitely enjoy presumptive immunity as an ‘official act’. Any prosecution attempt to rebut that presumption would not be allowed to explore or question his motive in ordering the strike. Any prosecution would not be allowed to introduce as evidence any advice from or discussions with his cabinet or military leadership where they tell him “sir, that’s illegal and would be a crime”. Odds of a prosecution successfully proving any offense beyond a reasonable doubt would be slim. The more I look at and read on this, the more significant seems to be the court’s ruling that advice, deliberations, etc that the president receives or is party to are not admissible evidence. That’s a hole big enough to drive an entire truck full of ‘reasonable doubt’ through.
SCOTUS has not empowered a king, but they have given any president near-king like immunity, either explicitly, or by the obstacles thrown up to bar the use of official acts as evidence. Any crime by a president will need to be super blatant and egregious to be successfully prosecuted, particularly now that any president will know this up front. This is a pretty breathtaking decision.
Needless to say, all the Republicans who have been up in arms about prosecuting Biden for this that or the other thing have not had the wind taken out of their sails, but rather the entire sails ripped from the masts and thrown in the water.
I’m less confident now that the prosecution of Trump for January 6th will proceed to trial. What will need to happen now will be months of hearings by the trial court judge (that’s judge Chutkan in DC district court) into whether each of the various acts constituting the alleged offenses were “official acts” or “unofficial acts”. So, much of the evidence will still be very publicly tried in the coming months, but that will all be pre-trial litigation to determine what acts can be prosecuted or used as evidence at all. And of course Trump will appeal any of those that he loses, and some of those appeals will probably go all the way to SCOTUS too. This will be probably a couple more years playing out.
Not sure yet how this affects the Florida classified documents prosecution, but as most of that happened after he lost and his term ended, he will not enjoy much immunity there. The trick to watch for there will be judge Cannon seizing on the fringe theory that the special counsel was not legally appointed. That shouldn’t succeed but it will delay if she takes it up.
Not sure what this does to the Georgia prosecution.
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Posse Comitatus restrictions mean it would have to be the Air National Guard carrying out said strike
Posse Comitatus isn’t as clear cut as that.
Because of some creative work under the Obama and Trump administrations on JSOC personnel.
So in essence, Trump was right that Biden could get ST-6 to whack him…
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So SCOTUS has taken the wind also out of Trump’s sails to be able to conduct any post-election pursuit of anything Biden may be considered by Trump to have done that he didn’t like?
SCOTUS has ruled that Biden enjoys absolute immunity for any official acts pursuant to his Article II powers, and presumptive immunity for any other official act. They have made rebuttal of that official act immunity very, very hard to achieve. Biden could still be criminally prosecuted post-presidency for any ‘unofficial acts’ that aren’t connected to his official functions.
I’ve yet to see the Republicans advance anything close to a cogent argument of what crimes they think Joe Biden has committed in office, so I can’t tell you where in the three distinct buckets of acts those fantasies would fall. But certainly nothing remotely connected to his duties as president.
The Trump prosecution will now hinge on proving that some acts were not official, and that other acts, even if official in nature, can be proven to be safely prosecutable without presenting any “danger of intrusion on the authority and functions of the executive branch”. Ie, the rebuttable presumptive immunity will defer pretty much entirely to protecting the executive branch in the fulfilling of its functions. Any presidential action that could be claimed as an ‘official act’ presents prosecutors with a steep uphill battle, where they don’t get to consider motive or internal executive branch advice in arguing such determinations. ‘Officialness’ would be an effective legal camouflage for all manner of gross misconduct.
None of this affects Congress’ powers of impeachment, but impeachment would not of its own right lift the protective immunity from presidential crimes. One of the dissents points out that this is seemingly at odds with what the founders actually intended when they wrote the impeachment clause, where prosecution would be able to follow impeachment, but the SCOTUS majority still so ruled. Such is now the law of the land.
I’ve yet to see the Republicans advance anything close to a cogent argument of what crimes they think Joe Biden has committed in office, so I can’t tell you where in the three distinct buckets of acts those fantasies would fall. But certainly nothing remotely connected to his duties as president.
The Trump prosecution will now hinge on proving that some acts were not official, and that other acts, even if official in nature, can be proven to be safely prosecutable without presenting any “danger of intrusion on the authority and functions of the executive branch”. Ie, the rebuttable presumptive immunity will defer pretty much entirely to protecting the executive branch in the fulfilling of its functions. Any presidential action that could be claimed as an ‘official act’ presents prosecutors with a steep uphill battle, where they don’t get to consider motive or internal executive branch advice in arguing such determinations. ‘Officialness’ would be an effective legal camouflage for all manner of gross misconduct.
None of this affects Congress’ powers of impeachment, but impeachment would not of its own right lift the protective immunity from presidential crimes. One of the dissents points out that this is seemingly at odds with what the founders actually intended when they wrote the impeachment clause, where prosecution would be able to follow impeachment, but the SCOTUS majority still so ruled. Such is now the law of the land.
QV
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This decision was entirely predictable with a sane SCOTUS.
All the musings of what Trump might want to do in the future but didn't bother to do during his first term are interesting. The difference is that Biden actually did go after his political opponents (with very loose interpretations of law), where Trump did not though it was crystal clear there was/is substantive cause to do so.
The other difference, often ignored, is that Hillary was never POTUS and many of the allegations against Biden are when he was not POTUS (senator or VP). So neither enjoy the immunity of a POTUS for those allegations.
All the musings of what Trump might want to do in the future but didn't bother to do during his first term are interesting. The difference is that Biden actually did go after his political opponents (with very loose interpretations of law), where Trump did not though it was crystal clear there was/is substantive cause to do so.
The other difference, often ignored, is that Hillary was never POTUS and many of the allegations against Biden are when he was not POTUS (senator or VP). So neither enjoy the immunity of a POTUS for those allegations.
kkwd
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Under that scenario when they refuse to do it, ( which they will) there will be a raft of court martials. But the other alternative, going again with this scenario, there would be summary executions since the president can order the death of any US citizen.
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I think this is a stupid decision by SCOTUS that will bring about a ton of unintended consequences.The Dems weaponized the justice system against their political opponents. They FA and FO.
They just opened the door for a sitting President to do things with legal immunity that weren’t there before - the FAFO factor may blow back on the GOP in the next few months.
SCOTUS has also caused months of public evidentiary hearings this summer and fall in the Trump DC prosecution, in order to determine if acts were official acts that attract immunity. The details of most of Trump’s actions underlying the indicted offences will be tackled by the court, reported on, and known to voters before the election. Your glee may be slightly misplaced; it’s unlikely that that aspect will be super helpful to him in November.The Dems weaponized the justice system against their political opponents. They FA and FO.
QV
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"This time we got him for sure!"
I have not said that (and nobody here has), but of course it’s normal for you misrepresent what I’m saying.
And nobody here is doing so with any serious belief that it should, would, or could happen. It’s a pure hypothetical to test the conceptual limits of the immunity question vis a vis the various legal positions of the office of the presidency. While it’s clearly hyperbolic, it’s still interesting to pick apart.
You’re invited to the conversation on how the law actually applies if you feel equipped to participate. The link to the decision has been shared farther upthread.
Brad Sallows
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People who were all "precedent is practically in stone" over Roe should be happy to revisit this issue as frequently as necessary to effect change. Any particular contentious action would have to be litigated. I suspect the extreme hypotheses for what a president can do will not survive in court.
The value of closing most doors to chasing ex-presidents in courts probably outweighs the risk of presidents doing damage they can't already do.
The value of closing most doors to chasing ex-presidents in courts probably outweighs the risk of presidents doing damage they can't already do.
GR66
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I'm confused. So if Trump via a compliant Attorney General orders Biden arrested for treason for acts that Biden committed in an official capacity during his term in office...for which he is actually immune as per the recent SCOTUS ruling...would Trump be immune from prosecution for doing so?
QV
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From Kelly Craft, the formerU.S.
"Mr. Trump is indeed likely to return. U.S. President Joe Biden is the most unpopular president since the end of the Second World War. He recently hit a new low of 37.4 per cent approval in the FiveThirtyEight average of polls, while 86 per cent of Americans say he is too old for another term. He faces double-digit disapproval on every issue. So, as a friend of Canada, my message is simple: Buckle up and get ready for a second Trump presidency.
Mr. Trump’s return will be good for North America and the NATO alliance. Mr. Trump raised U.S. defence spending to near-historic highs. He made America an energy superpower again. He eliminated the Islamic State’s physical caliphate. He took out Iran’s terrorist mastermind Qassem Soleimani. He brokered not one but three Arab-Israeli peace accords. And he is the only president in the 21st century on whose watch Russia did not invade one of its neighbours.
But Mr. Trump is going to expect some things from our allies – particularly from our closest ally. Canada is the sixth-wealthiest country in the NATO alliance. Yet it is sixth from the bottom in terms of defence spending. At the 2014 NATO summit in Wales, Canada agreed that all allies must spend a minimum of 2 per cent of GDP on defence. Well, here we are a decade later and Canada is spending just 1.38 per cent of GDP on defence – behind Croatia, Montenegro and North Macedonia. The only NATO allies who spend less on defence are Slovenia, Turkey, Spain, Belgium and Luxembourg.
...
But what President Trump is not going to do is allow the American people to carry the lion’s share of the burden while allies don’t pull their weight. Canada needs to step up and spend more on its own defence and provide more help to Ukraine.
It’s in Canada’s interests to do just that. The vast majority of the military aid money we provide for Ukraine does not actually go to Ukraine – it is being spent in the U.S. to build new weapons or to replace weapons sent to Kyiv from U.S. stockpiles, reinvigorating our defence industrial base and creating good-paying manufacturing jobs for American workers. The same should be true in Canada.
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I know this is a tough message. But it is delivered by a friend who loves this country. Canadian and U.S. forces have stood together from the beaches of Normandy to the mountains of Afghanistan. We are each other’s largest trading partner. And we share a common North American heritage. I believe that a second Trump term will strengthen NATO and usher in one of the greatest eras in U.S.-Canada relations – if Canada does its part."
With all of the above in mind, I'm still surprised that a large body of allegedly CAF folks on this forum are opposed to a Trump presidency.
I'm confused. So if Trump via a compliant Attorney General orders Biden arrested for treason for acts that Biden committed in an official capacity during his term in office...for which he is actually immune as per the recent SCOTUS ruling...would Trump be immune from prosecution for doing so?
The AG has no arrest authority that I’m aware of, but Trump could certainly order the AG to have DoJ/FBI commence a criminal investigation. Arresting officers would have to have a warrant or the applicable probable cause under some law or another; I’m not aware of any direct chain of legal authority that would allow a president to command an arbitrary arrest of someone that would actually end up taking place.
Certainly a president could not be prosecuted for such a discussion/direction, but in full fairness I don’t know offhand if they could have been before and if anything has changed. In reality that gets filtered somewhere down the chain by “yeah no, I can’t do that”.
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What are you talking about, the President just did that 4 times to Trump!
