Justice Roberts’ Drone Strike on George Washington’s Legacy

Chief Justice John Roberts cloaked his radical opinion granting Presidents broad immunity in the Farewell Address of George Washington, normally celebrated as the codification of the peaceful cession of power, the humility of the role of the President.

Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.

It is these enduring principles that guide our decision in this case.

But Roberts instead focuses on Washington’s warning against factionalism — and from there, to a claim to honor separation of powers.

Never mind that, as Justice Ketanji Brown Jackson notes, Roberts’ opinion instead radically altered the balance of powers, which (adopting Washington’s logic) will arguably feed factionalism.

It is important to note that the majority reframes the immunity question presented here as a separation of powers concern that is compelled by Article II—as if what is being asked is whether Congress can criminalize executive prerogatives. See, e.g., ante, at 6–7; see also ante, at 1– 2 (BARRETT, J., concurring in part). But that is not anywhere close to what is happening in this case. No one maintains that Congress has passed a law that specifically criminalizes the President’s use of any power that the Constitution vests exclusively in the Executive, much less that the Judiciary is being conscripted to adjudicate the propriety of such a statute. To the contrary, the indictment here invokes criminal statutes of general applicability that everyone is supposed to follow, both on and off the job. So, the real question is: Can the President, too, be held accountable for committing crimes while he is undertaking his official duties? The nature of his authority under Article II (whether conclusive and preclusive, or shared with Congress, or otherwise) is entirely beside the point.

Plus, by my read, the only separation of powers that Roberts really cares about is that between one Executive and his successor. Roberts is, in actuality, usurping the Article II authority of DOJ to prosecute crimes exclusively in the case of a former President, adopting that power to the judiciary.

Roberts’ opinion does that even while it permits the sitting President to use the trappings of DOJ against everyone but his predecessor, with personal presidential involvement. All the abuses of the Trump DOJ? The revenge prosecution of Greg Craig, Michael Sussmann, and Igor Danchenko? All cool with John Roberts. The use of DOJ resources to have an FBI informant frame Joe Biden? Still totally cool. Not revenge. Just the President doing what he’s empowered to do.

But it’s that more cherished precedent Washington set, of the transfer of power rather than kings, that Roberts has done real violence to.

Consider what happened to Blassingame — the DC Circuit opinion holding that a former President can be sued for actions taken in his role as candidate for office — in this opinion.

Blassingame was mentioned repeatedly in the argument of this case, 16 times, often when a Republican who joined Roberts’ opinion today queried John Sauer if he agreed with it.

It came up when Clarence Thomas asked whether Sauer accepted the function of a candidate to be a private act — with which he mostly agreed and then backtracked somewhat.

JUSTICE THOMAS: Mr. Sauer, in assessing the official acts of a president, do you differentiate between the president acting as president and the president acting as candidate?

MR. SAUER: Yes, we do. And we don’t dispute essentially the Blassingame discussion of that.


MR. SAUER: But, of course, that has to be done by objective determinations, not by looking at what was the purpose of what you did this, and that’s the most important point there.

It came up when Neil Gorsuch queried Sauer about it (in which case Sauer adopted former Trump White House Counsel Greg Katsas’ more narrow holding on it).

JUSTICE GORSUCH: And then the question becomes, as we’ve been exploring here today a little bit, about how to segregate private from official conduct that may or may not enjoy some immunity, and we — I’m sure we’re going to spend a lot of time exploring that. But the D.C. Circuit in Blassingame, the chief judge there, joined by the panel, expressed some views about how to segregate private conduct for which no man is above the law from official acts. Do you have any thoughts about the test that they came up with there?

MR. SAUER: Yes. We think, in the main, that test, especially if it’s understood through the lens of Judge Katsas’ separate opinion, is a very persuasive test. It would be a great source for this Court to rely on in drawing this line. And it emphasizes the breadth of that test. It talks about how actions that are, you know, plausibly connected to the president’s official duties are official acts. And it also emphasizes that if it’s a close case or it appears there’s considerations on the other side, that also should be treated as immune. Those are the — the aspects of that that we’d emphasize as potentially guiding the Court’s discretion.

Gorsuch would go on to question Dreeben about Blassingame at length.

It came up when John Kavanaugh invited Sauer to rewrite Blassingame, and Sauer largely declined.

JUSTICE KAVANAUGH: Where — where do you think the D.C. Circuit went wrong in how it determined what was official versus what’s personal?

MR. SAUER: Well, I read — I read the opinion below in this particular case as adopting a categorical view. It does not matter, is the logic of their — their opinion because there is no immunity for official acts and, therefore, you know, that’s the end of the story. I don’t really think they went wrong in Blassingame in the civil context when they engaged in the same determination with respect to what’s official and what isn’t official. There, we agree with most of what that opinion said.

And it came up when Sammy Alito asked John Sauer if he’d like an order saying that the President was immune unless there was no possible justification, in which case Sauer raised Blassingame, and Alito shifted from analysis of official and unofficial.

JUSTICE ALITO: But what if it were not — what if it did not involve any subjective element, it was purely objective? You would look objectively at the various relevant factors? MR. SAUER: That sounds to me a lot like Blassingame and especially viewed through the lens of Judge Katsas’ separate opinion, and that may not be different than what we’re proposing to the Court today.

JUSTICE ALITO: Well, Blassingame had to do with the difference between official conduct and private conduct, right?

MR. SAUER: That’s correct. I — I understood the Court to be asking that.

JUSTICE ALITO: No. This — this would apply — and it’s just a possibility. I don’t know whether it’s a good idea or a bad idea or whether it can be derived from the structure of the Constitution or the Vesting Clause or any other source. But this would be applied in a purely objective — on purely objective grounds when the president invokes an official power in taking the action that is at issue?

MR. SAUER: Yes, I believe — the reason I think of Blassingame is because it talks about an objective context-specific determination to winnow out what’s official and what is purely private conduct, and, again, in a — with a strong degree of deference to what — and, therefore, you know, that’s the end of the story. I don’t really think they went wrong in Blassingame in the civil context when they engaged in the same determination with respect to what’s official and what isn’t official. There, we agree with most of what that opinion said.

You might be justified in thinking that Blassingame would be central to today’s ruling, not least because the charged crimes are the same ones as the complaints alleged in Blassingame.

The central holding of Blassingame, however, is gone.

Blassingame appears just three times in the opinion rendered today. Roberts uses it as a limiting factor.

But the breadth of the President’s “discretionary responsibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. 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

Sonia Sotomayor notes that Roberts has used it as a limiting factor, then notes he has also eliminated any analysis of motive.

In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. It says that whenever the President acts in a way that is “‘not manifestly or palpably beyond [his] authority,’” he is taking official action. Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)). It then goes a step further: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” Ante, at 18.

Jackson makes a similar observation.

At most, to distinguish official from unofficial conduct, the majority advises asking whether the former President’s conduct was “‘manifestly or palpably beyond [his] authority.’” Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)).

There’s not even much discussion of Trump’s role as a candidate! Roberts raises it, and then says Trump’s electioneering tweets might serve some other purpose.

There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453 (2011) (internal quotation marks omitted). But “there is not always a clear line between [the President’s] personal and official affairs.” Mazars, 591 U. S., at 868. The analysis therefore must be fact specific and may prove to be challenging.

The indictment reflects these challenges. It includes only select Tweets and brief snippets of the speech Trump delivered on the morning of January 6, omitting its full text or context. See App. 228–230, Indictment ¶104. Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each. Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication.

In ruling (unsurprisingly) that the Jeffrey Clark allegations have to be thrown out, Roberts goes further, and reads the Executive Branch interest in policing election crime to extend to making false claims about the election.

The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” Brief for United States 46; see id., at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8)

And when entertaining Trump’s claims that his interference in state and congress’ role were just an effort to protect the integrity of the election, Roberts thumbs both the scale and the facts again, using the Take Care clause as a shield rather than the sword that Judge Karen Henderson viewed it as.

On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Of course, the President’s duty to “take Care that the Laws be faithfully executed” plainly encompasses enforcement of federal election laws passed by Congress. Art. II, §3. And the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election. Cf. Hawaii, 585 U. S., at 701. Similarly, the President may speak on and discuss such matters with state officials—even when no specific federal responsibility requires his communication—to encourage them to act in a manner that promotes the President’s view of the public good.

Even when conceding that Trump was pressuring Mike Pence as President of the Senate, not as his Vice President, when he was threatening to have him assassinated, Roberts suggests this is a close call, because Trump has to be able to pressure the President of the Senate to get legislation passed.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

Over and over again, then, Roberts has applied his new standard — whether anything might conceivably intrude on the functions of the Presidency — to immunize usurping Congress’ (and states’) role in certifying the election.

What John Roberts has done — at least preliminarily — is carve out an Executive authority so broad that in every area where the President is explicitly excluded, even in the role of candidate-for-President, the President can still act with absolute immunity.

That authorizes the President to use all the powers of the Presidency to win re-election — precisely the opposite holding of what Blassingame adopted.

In an opinion that tries to cloak his power grab with an appeal to President Washington, John Roberts has suffocated the greatest thing Washington gave the United States, the presumption that Presidential powers would cede to the power of elections.

146 replies
    • earlofhuntingdon says:

      Oh, this is a bang that would break the eardrums of any non-MAGA lawyer or politician.

    • earlofhuntingdon says:

      Roberts does seem to have forgotten that, for Trump, loyalty and appreciation go only one way.

      • emptywheel says:

        There’s an irony re McConnell’s central role in what happened today, even though on several levels he hates it and knows it is wrong.

        • Rugger_9 says:

          Irony would apply to Gym Jordan lawsuit for the Hur tapes, since it appears to me that this ruling renders the effort DOA sine Biden has immunity and has unlimited privilege to withhold tapes.

        • dcgaffer says:

          Irony is commander in chief absolute immunity, which while permitting the Nuremberg tribunal for the lesser Nazis, results in Hitler going scot free. Irony is saying one needs immunity for bold and unhesitating action. Immunity does not make a coward brave, but does embolden hubris and recklessness. One would think folks would remember their Ancient Greek, since Madison went on so long about it.

  1. SelaSela says:

    Everyone is talking about the effect that this ruling would have on the Jan 6th case. But it seems to me that an even more worrisome implication is that SCOTUS just made the threat of second presidency vastly more dangerous if Trump gets reelected. Knowing that he have this kind of absolute immunity would make Trump infinitely more dangerous.

    P.S. What does presumptive immunity mean exactly, and how is it different than absolute immunity?

    • Attygmgm says:

      In theory, presumptive immunity can be rebutted. But the court set a hard standard for the rebuttal, and one they could easily pooh-pooh when the case returns to them.

      The Roberts opinion seems to me dangerous in destroying the independence of DOJ. Trump appears that have successfully destroyed the norm of DOJ as independent.

      • SelaSela says:

        Attygmgm: Add that to Trump’s plan for schedule F “reform”, and the result could be devastating.

      • hstancat says:

        It’s a little more than a “hard standard.” The “no dangers of intrusion on the authority” language means that they can reverse any trial court finding they choose. It’s lawless.

      • ButteredToast says:

        Exactly. And as Dr. Wheeler has written, Trump has primed Republican voters to accept this situation by convincing them that any investigation or case against him, for anything whatsoever, is illegitimate and politically motivated. Now he can add the sanction of SCOTUS to his existing justification (essentially, “everyone does it!” or “they did it first!”).

      • Marinela says:

        Reminds me of Comey’s role when all of this started in 2016. All the talk about protecting the DOJ independence… Ya Comey, maybe you can rethink your decisions back in 2016 if you can be honest.

        The one silver lining in this terrifying times, Trump managed to expose the republicans for who they really are.
        And forced them to explicitly take sides. Everything is on the open now. They cannot pretend anymore. It is on us to take advantage, is not just Trump, are the republicans that are enabling him.

      • Fancy Chicken says:


        This is one of my most pressing worries at the moment, the wall between DOJ and POTUS has been officially obliterated and if reelected Trump will take full advantage.

        Absolutely chilling.

    • SelaSela says:

      By the last question I mean: what do you need to prove in order to overcome the presumption of immunity?

      [Moderator’s note: You’re adding one too many m to your email address compared to your previously used address. I’ve corrected it in both your comments today; mismatches like that get caught up in auto-moderation and need manual clearance. /~Rayne]

      • Attygmgm says:

        Page 14 of the Court’s opinion says:

        “At minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.'”

        The quote is from Fitzgerald v. Nixon, a civil case, transposing it to a criminal context. So the burden is on the Government to prove — a negative! Pose no danger. None at all. A year from now, when the case returns to the court after they send Judge Chutkan through this exercise, the Supremes could easily disagree with any finding that there was no danger, and thereby exclude any charge on the ground that the Supreme Court majority desires to claim there is a danger, any danger, however slight. And to make that showing they exclude evidence of motive (p. 18) and (at p. 31) they exclude using evidence of official acts to prove what the Government has to prove about lack of intrusion on the Executive.

        In other words, how to achieve as much total immunity as the majority desires in for insurrection in two easy steps. One in 2024, one in 2025.

    • emptywheel says:

      You’re absolutely right. The Jan6 trial can at least be aired. But this pre-immunizes a lot of the fascism that Trump has planned.

      • Playdohglobe says:

        Boils down to Roberts agreeing with Nixon and applying it to all Presidents.

        When Nixon said “if the president does it, it’s not illegal,” no one believed that was true.

        Roberts and the MAGA SCJ tyrants make this statement true.

        SCJ Jackson’s dissent says it clearly.

        “Under the individual accountability model, because everyone is subject to the law, the potential of criminal liability
        operates as a constraint on the actions and decisions of everyone, including the President. After today, that reality is
        no more. Consequently, our Nation has lost a substantial
        check on Presidents who would use their official powers to
        commit crimes with impunity while in office.”

        No individual accountability – a true shield from the law only for the President.

        Freed from the Article I of our beautiful Constitution – Presidents are now Kings.

        “The supremacy of the people through their elected representatives is recognized in Article I, which creates a Congress consisting of a Senate and a House of Representatives. The positioning of Congress at the beginning of the Constitution affirms its status as the “First Branch” of the federal government.”

        A Wild, Loud Usurpation of Power from the Article 1 branch to the Article II branch and the Judiciary roles. Thunderous roar of money buying the Supreme Court by the Heritage Foundation.

        A dangerous and Disgusting result.

      • Stephen Calhoun says:

        Yes, the ruling also is a set-up for threading the needle: retaining the appearance of a democratic republic while allowing the instantiation of an authoritarian executive.

        For example, now the pardon power becomes the means for bringing the black detention and interrogation sites home.

        Roberts etches this anti-originalist, anti-checks-and-balances, anti-Federalist, anti-Democracy, ruling in the history books without shame—while also gaming out how much autocracy the Constitution can withstand.

        This also clarifies what are possible means for a Trump second go-around to cancel a mid-term election.

  2. Matt Foley says:

    SCOTUS says Trump can do whatever but thankfully Republicans have the “foundational” Ten Commandments to keep him in line. Gotta set a good example for the kids.

  3. Tetman Callis says:

    By this ruling, it is now even more apparent how thoroughly the Republicans screwed the Republic when their Senators did not vote to convict Donald Trump during his second (!) impeachment trial.

  4. earlofhuntingdon says:

    “‘The President Is Now a King’: The Most Blistering Lines From Dissents in the Trump Immunity Case,” including this excerpt from Justice Sotomayor’s dissent:

    The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation.


    • Yogarhythms says:

      Marcy, Earl,
      Nixon replied: “Well, when the president does it, that means that it is not illegal”, by definition. IANAL. I was a law student. Sadly my night law school educational institutional principles we were tested on for CA bar were not available to SCOTUS’s majority immunity opinion signatories.

  5. Old Rapier says:

    Conservatism isn’t a faction. Conservatism is the revealed truth of creation. Any and all opposition to Conservatism is driven by factions. Elimination of those factions is the only way forward for democracy.

    • Ginevra diBenci says:

      You can’t eliminate factions. You can only limit the power they wield within our system.

  6. Saeomon+1 says:

    I’m a lawyer. Lawyers swear an oath to the Constitution before being admitted to the Bar. Today the Court fundamentally betrayed the Constitution and every legal principle lawyers are sworn to uphold. This betrayal goes beyond mere disagreement about Constitutional interpretation. It guts the very concept of the people being sovereign. Calling it treason is not hyperbole. Six Justices just executed a de jure coup.

    [Welcome back to emptywheel. Please use the SAME USERNAME and email address each time you comment so that community members get to know you. You attempted to publish this comment as “Paying Attention.” I have edited it this one time to match your previously established username; please make a note of it and check your browser’s cache and autofill. /~Rayne]

    • Saeomon+1 says:

      Rayne: I did not mean to put you out. I couldn’t remember the username I entered, and the devices I was able to check before posting did not have it saved. Thank you for updating the post. I’ve made a record of the username in my password manager.

  7. Jeff Landale says:

    When the cops are gleefully brutalizing antifascist protestors after Trump cheats his way to victory or just straight up seizes power, I hope we’ll all take a moment to thank Joe Biden for unreservedly supporting the police and making sure they have even more money, more guns, and more staff on hand.

  8. ApacheTrout says:

    An incumbent president is now unfettered with the power to control the election process, all in the name of protecting the integrity of the election. Declare ballots as fraudulently cast? A court can’t even question the president’s motives.

      • ButteredToast says:

        I know you’re joking. But no doubt if Roberts and co. thought that Biden (as opposed to Trump) would abuse his power in the way they’ve legalized, they would’ve ruled differently.

        • Ramona-Anne C Rosario says:

          Well, tough titties to them! Biden should find a way to go for it, all assurances to the contrary! After all, he enjoys at least presumptive immunity.

  9. Critter7 says:

    The only good part of this would be if, when combined with Biden debate debacle, it allows Trump to feel even more emboldened to go out on a crazy fanatical limb, moving in the opposite direction from where he would go to win the as-yet undecided and persuadable and somewhat rational voters on his left who are essential to the upcoming election.

    Yes, I know I am grasping at straws, just trying to find something I can hold onto in this dark time.

    • Rugger_9 says:

      Convict-1 already issued his warning not to mess with anything for when he ‘wins’.

      Biden could have Marines supervising the MAGA ‘poll observers’ for example.

  10. jdmckay8 says:

    Great article!!! Clarifies a lot of legal-speak. I do not follow though, how you found…

    reads the Executive Branch interest in policing election crime to extend to making false claims about the election.

    … in the snippet you quoted. (???)

    From another of your Roberts’ quotes:

    And the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election. Cf. Hawaii, 585 U. S., at 701. Similarly, the President may speak on and discuss such matters with state officials

    That looks to me like an implicit declaration that Trump’s ask of Raffensperger, as Roberts constructs context, was A-Ok.

    • Rayne says:

      If the pressure Trump placed on Raffensperger violated GA state law, Roberts’ construct is worthless to the state.

      • jdmckay8 says:

        What else could that reference by Roberts refer to than the “Perfect” phone call?

        That he chose to include that tells me he (they?) have already given (what they call) thought to Fanni’s charges. Who knows, maybe they’ll just send Seal Team 6 to Georgia and take care of things the old fashioned way.

        And… I’m not trying to be argumentative. This decision generally has been predicted for a while. In thinking about it for months, what is obvious at least to me is that a whole lot of what the public has accepted as “the way it is” is (like what you said) is going to be “the way it was.”

        Been seeing this in decision after decision from this court.

        • Rayne says:

          Not all federal charges related to the interstate conspiracy have been charged. Roberts et al may have been trying to head those off, not necessarily the states’ charges.

          They’re going to have a really tough time claiming states’ rights for this (ex. abortion) but not for that (ex. violation of state election laws when the Constitution says the states run elections).

      • Beverley54 says:

        I thought Judge McAfee already threw out the charges that related to his phone call with Raffensperger?

        • jdmckay8 says:

          Anna Bower & Ben Wittes have brief conversation about how this affects the Georgia case here beginning about 1:03.50.

  11. ecsCoffee says:

    I hesitate to ask questions on this blog and reveal my ignorance, but in a maximally optimistic future scenario, how do we as a country go about reversing this? Would it require a constitutional amendment?

    IANAL. It seems a different court could overturn it, but would that require someone with standing (a President? a victim of a President?) bringing some case and arguing that they DON’T have immunity?

    • Shadowalker says:

      This court is using it’s own constitution. No matter how such an amendment could be written they will only interpret it so it fits their own view. The only solution is term limits on judiciary while also requiring 2/3 senate majority on confirmations.

    • Ginevra diBenci says:

      He read it. I’m sure he has it memorized. What makes me sick is the arrogance with which he seems to assume that we, the Little People, don’t know it and won’t read it for ourselves.

  12. Magbeth4 says:

    I just read the full Opinion and am left with the impression that Roberts and Thomas, particularly, were thumbing their noses at the Constitution as we have accepted it for generations, as well as succumbing to the increasing description of the President as being “the most powerful man in the country, if not the world.” That phrase is a powerful drug to some people.

    I also wondered if this were a retroactive way of preventing any prosecution against George W. Bush in matters relating to war crimes in Iraq, Afghanistan, etc. It’s as if Nixon was pointing the way when he stated that, “when the President does it…etc.” (I forget the exact wording.) This does not seem to be a new idea on the part of the Court or the political system as a whole, when one sees the watering down of Original Principles through Congressional “tweaking’ and Court rulings over decades. And, some of that can be blamed on poor Civic education since the early 60s, leading to ignorance of voters as to how government works. My thoughts are scattered because of the difference in reasoning by the Majority in the Decision and by the Dissenting Justices. The former lacked clarity. The latter was stark with the realistic ramifications of this dangerous Decision.

    The remedy would be for Congress to act to make laws which limit the scope of the Decision, and/or a Constitutional Convention to consider “tightening up the law,” although, with the present makeup of Congress and the polarization of the Country overall might create even worse Law. [I am glad I am old and won’t be around much longer to witness the destruction of what actually created a great system of government. It served us well, for a long time, but, as with all great nations, decay sets in. History gives us plenty of examples.]

  13. scroogemcduck says:

    Article II gives the power to the President to appoint Supreme Court justices. What is there to stop Biden just appointing 20 more justices to the Court, including 2 more Chief Justices?

      • scroogemcduck says:

        Hypothetically, as of today, the President could order troops to lay siege to the Capitol and imprison the Senators until they confirmed his picks.

        Or murder Senators one by one until the remaining ones do what they are told.

        I believe either option, while clearly insane, is “fine” under SCOTUS’s ruling.

        • eyesoars says:

          So we have a president, until such date as someone as ambitious and amoral as Saddam Hussein — or Vladimir Putin — takes office. We’ve not yet become our enemies, but we’re trying.

        • Mutaman says:

          “The limits of papal power became a source of conflict between reigning pope Clement V and Emperor Henry VII, culminating with the sudden death of Pope Clement V in 1314.[10] The period that followed was an interregnum of two years due to disagreements between the cardinals,[11] who were split into three factions.[12] After two years of inaction, Philip, Count of Poitiers summoned a papal conclave of 23 cardinals to Lyon in August 1316.[13] Philip forbade the cardinals from leaving until they had chosen a new Pope.[13] On 7 August 1316, this conclave elected Jacques, who took the name John XXII and was crowned in Lyon.[14] He set up his residence in Avignon rather than Rome, continuing the Avignon Papacy of his predecessor.[15]”


      • Marinela says:

        Senate is still dems majority with Kamala as tie breaker.
        But there is not much time.

    • Just Some Guy says:

      Any theoretical extra justices nominated by Biden still have to be confirmed by the Senate.

    • Ebenezer Scrooge says:

      The number of Justices is fixed by statute. The current limit is nine. Even Senate approval would not be enough to change this–you’d need the House, as well.

  14. Mike Stone says:

    After the Citizen’s United decision of the Roberts court, I believed him to be the worst Chief Justice in all of US history, even worse than Roger Taney. Apparently that was not enough for Roberts, he now is working to destroy democracy in the US.

    • Just Some Guy says:

      Tough call but I’m still going to give the edge to Taney. Robert is definitely up there, though.

    • Bobster33 says:

      One said people are property, the other said property is now a person. Overcoming the first took a civil war. Overcoming Roberts will require (I think) an equally large sacrifice.

  15. jdmckay8 says:

    (…) In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” (…)

    It is these enduring principles that guide our decision in this case.

    I am often troubled by rampant misuse of the word: Principle(s). AFAIC none of the most commonly used dictionaries (Cambridge, Webster’s) has anything apporaching a satisfying definition. Given so much sloppy usage of the word, taken out of context I’ve never been able to find a distinction between rules/laws/notions/ideology and Principle. Dictionary defintions aren’t much help.

    I’ve read legal definitions of principle in the past, maybe a little better but easily twisted into non-existent realities and contexts as Roberts does here.

    Lots of really good writing on just Principle, and what constitutes Principle that is graspable by most intelligent people. Summarized I say Principle is much more fundamental than wish-lists of what idealogues that come and go use the word to justify. Its a debasement of language, IMHO.

    Earlier this year I did some reading (for first time in at least a decade) of a lot of Federalist papers, and also a few collections of other respected Founder’s statements and speeches. I don’t have direct citations at my fingertips, but very similar statements by James Madison and Washington said (my words, but they’re accurate):

    In a constitutional Republic, maintaining virtue by its leaders is essential. Without virtue, they crumble.

    Whatever one chooses to use as a definition, what these 2 guys had to say about virtue comes far closer to being a guiding principle in these circumstances that what Roberts wrote. Seeing these justices try and apply that guiding principle to exonerate Trump would be one ugly, convoluted pretzel.

  16. Savage Librarian says:

    MAGAt Court

    Don’t ever laugh as Roberts goes by
    For you may be the next to cry
    He’ll wrap you up in his big conceit
    Bombard your head and browbeat

    He’ll put you in a MAGAt box
    Cheat you out of American docs
    All goes well for about a week
    Then democracy begins to leak

    The harms crawl in
    The harms consort
    The harms predictable
    in Roberts’ court

    The ones that go in
    are lean and thin
    The ones that come out
    are fat and stout

    They cheat your eyes
    they cheat your knows
    They spread their lies
    with a fascist hose

    He’ll put you in a MAGAt box
    Cheat you out of American docs
    And when democracy is all gone
    There’s no republic to carry on


    “The Hearse Song Rusty Cage Piano Cover”

  17. Bay State Librul says:

    Way back when

    “Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”

    • PopcornJunky says:

      And yet Roberts continues to throw spitballs with the Vaseline he swiped from the brim of his MAGA hat.

      @MODS if you are unsure about the Pitching-Vaseline-Spitball reference — just ask. I’m certain many of your readers will understand.

      [Moderator’s note: I’m not having a problem with the baseball reference; I can’t approve your comment as quickly as you’ve duplicated and changed this comment given the volume of moderation I’m trying to handle. /~Rayne]

      • PopcornJunky says:

        Hi Rayne – Apologies as it’s my first time posting as was unaware that you approve every post PRE. I assumed you moderated after the fact. Thank you!

        • Rayne says:

          Moderation timing depends on a lot of variables. Your comments went into auto-moderation because the system didn’t recognize you as an established community member. One of your comments had a different username (I think you caught it and tried to delete it) and may have further compounded recognition.

      • Ginevra diBenci says:

        Good thing Roberts is also the umpire when those spitballs so often go high and wide of the constitutional strike zone. It’s a nice little circular game he’s got going on there, isn’t it.

      • PopcornJunky says:

        @Rayne – all good. Again my first time posting and I was unaware all posts get approved by you prior to being live. Now we know each other. And maybe other first time posters will know the drill. Thanks for all you do. :)

  18. jdmckay8 says:

    Seems to me this will make barrage of SLAP lawsuits threatened explicitly by Project 2025 and their spokespeople, and a few of top dog MAGAs that have been busy for a while recruiting and training lawyers so they’re ready to hit the ground running if Trump’s inaugurated again.

    • Rugger_9 says:

      She can file but it goes nowhere unless the House majority goes along with it. I think it would take something to scare the MAGAs about what they unleashed, perhaps Biden can do something to remind the MAGAs of the stakes.

      • CaptainCondorcet says:

        Biden has more years of public service than the average age of an American. We can hope for a fiery denouncement, but should expect nothing more from perhaps one of the most traditional institutionalists still serving on the national stage.

    • earlofhuntingdon says:

      Performance art. Will go nowhere in current House. But the Supreme Court just made such things a part of a program of civil disobedience. More ideas needed.

  19. Tetman Callis says:

    Could the near-term solution to the problem the Court has created with this opinion be for President Biden to use the powers it grants to him via his official office to issue an executive order overturning the opinion and restoring the status quo ante? I mean, I don’t think that’s the best long-term solution, but it appears the Roberts court has endangered the nation and a state of emergency could be appropriate — when the building’s on fire, you don’t argue over the quality of the water used to extinguish the blaze.

    • Rn_02JUL2024_1248h says:

      It’s an interesting legal quandary. By issuing this EO, he would be tacitly negating his legal ability to issue such an order.

      [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We have adopted this minimum standard to support community security. Because your username is far too short it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]

  20. scroogemcduck says:

    (meant as a reply to Tetman Callis 👆) Short answer – no. The President has no power to overturn a Supreme Court decision.

    [Moderator’s note: please avoid using emoji as they are not searchable. Emoticons are acceptable. /~Rayne]

    • Rugger_9 says:

      Well, now POTUS might be able to channel his inner Andrew Jackson and remind Roberts that he’s made his decision ‘so now let him enforce it’.

      What SCOTUS does is to set the standard for all lower courts, but as we saw in Dobbs, Kennedy, etc. et al it does not preclude challenges on SCOTUS-approved precedents especially in the 5th CA. A unitary executive that Roberts created will do exactly that until he gets what he wants.

      • Badger Robert says:

        Andrew Jackson postponed the Civil War, and in the 20 years that passed, the paid labor section of the US became dominant. James Buchannon’s inaction guaranteed there would be a war/ And Roger Taney’s decision in Dred Scott added tinder to the potential fire.
        Buchannon or Lincoln, those are President Biden’s options.

  21. Bonnie Mae or Mae Not says:

    Let’s get out the vote as never before! He lost by 7 million votes last time; let’s make him lose by 30 Million votes! I do believe there is a majority of Americans who do NOT want him as President. I am 78 years old, going on 79 in a couple of months; but, I will work as hard as possible to see that he never serves as President ever again.

    • c-i-v-i-l says:

      In the comments on another post, I asked about people’s favorite voter registration / get out the vote organizations. Suggestions so far:
      * Progressive Turnout Project (https://www.turnoutpac.org/) has a voter turnout Postcards to Swing States effort
      * Vote Save America (https://votesaveamerica.com/)
      * Voters of Tomorrow (https://votersoftomorrow.org), mobilizing young voter turnout
      * Indivisible (https://indivisible.org), also focused on voter turnout
      * The Poor People’s Campaign (https://www.poorpeoplescampaign.org), which said they’re aiming at voter registration and get out the vote among poor and low-income Americans, though the website doesn’t have much info posted yet

    • JustMusing says:

      Same age and not giving up the fight for democracy and to booting Trump from the national scene forever. Then rebalance the SC. Roberts is an anathema to our system of Rule of Law as are the other 5 traitors to our Constitution.

  22. jdmckay8 says:

    Lawfare has their group discussion up on youtube. At about 41.20, Anna Bower explains how Thomas’ (somewhat bizarre) concurring opinion gives Judge Canon a roadmap for dismissal on the Smith-was-unconstitutionally-appointed thingie.

    • FiestyBlueBird says:

      I watched that, too. It’s worth the hour or so to get a basic understanding as to just how fucked these cases are now. It’s pretty bleak. Beyond bleak.

      As others have pointed out, the ballot/elections have always remained the best possible way out of this. Except, that looks bleak, too. On multiple fronts.

      The decision incentivizes future criminally minded sociopaths to gain the office.

      The fascists seem to be winning the long game.

  23. OldTulsaDude says:

    If anyone has not, I highly recommend reading “How Democracies Die”. With the courts now firmly in control of the fascists, the only leverage to save ourselves is to vote while our votes still count.

    • SteveBev says:

      A necessary and important statement. Remarkable.

      Unfortunately its significance is immediately being diluted by commentary that the statement was necessitated as much if not more by the political fall out from Biden’s poor performance in the debate, than the extraordinary latitude and indulgence SCOTUS grants to Trump.

  24. c-i-v-i-l says:

    Every bad SCOTUS decision this term should have been met with immediate release of model legislation

    “Elect me, give us majorities in Congress and I will sign this,”

    A modest suggestion —

    An Act

    To waive any purported immunity of a president from criminal prosecution for official acts performed during her or his presidency …

    https://bsky.app/profile/sababausa.bsky.social/post/3kwaoioqt5m2l — full text of the brief suggested bill, The President Is Not a King Act, in the post

    This Congress wouldn’t pass it, but it should still be proposed, and Biden should say that he’d sign it.

  25. c-i-v-i-l says:

    Trump Moves to Overturn Manhattan Conviction, Citing Immunity Decision

    In a letter to the judge overseeing the case, Mr. Trump’s lawyers sought permission to file a motion to set aside the verdict… The letter will not be public until Tuesday at the earliest, after which prosecutors will have a chance to respond.

    It might be too late for Justice Merchan to revisit the conviction. The deadline for filing post-trial motions was last month, and it is unclear whether the judge will seriously entertain the motion, even in light of the high court’s decision. Instead, he might direct Mr. Trump’s lawyers to raise the issue when they appeal the conviction after he is sentenced. …


    • P J Evans says:

      It’s still a state court problem. He was convicted, legally, after being charged, legally, and he can’t change that. He isn’t going to get pardoned by Hochul, either.

    • SteveBev says:

      Didn’t Trump waive the Presidential immunity argument in the Manhattan case?

      And in any event, if the evidence did contain a smidgen of material possibly related to some presumptively official conduct, which might fall foul of the newly crafted evidentiary exclusionary rule isn’t it likely to be harmless error?

      There was I think one tweet. The rest of the evidence as it related to dealing with signing cheques and mailing arrangements was private conduct, unless there’s something I have overlooked.

      • earlofhuntingdon says:

        Hard to see how running your own private company, and doing so through persistent, material, fraudulent conduct, has any connection with the official acts of any government official, let alone the president.

        I see no basis for Trump’s demand that the case be dismissed. I expect Judge Merchan, unlike Judge Cannon, to dispense with the request via a prompt order, and to tell Trump’s lawyers to take it up on appeal, if he so desires.

      • earlofhuntingdon says:

        Sorry, confusing Trump’s state civil fraud case with his state election fraud case. As Rayne says elsewhere, Trump’s conduct in the latter was as a private citizen, who hoped to become president.

        That he completed the fraud while in office, by signing checks in the Oval Office, seems immaterial. A president does a lot of personal business in the Oval Office, because that’s where he works every day.

  26. freebird says:

    Trump could order the executions of millions of people on a whim and not be prosecuted. He could literally shoot someone on 5th Avenue for fun and call it an official act.

  27. Namaste_MF says:

    I just realized there is another interpretation of the Presidents new found powers regarding the DOJ.

    A) the President could order an investigation of the SCOTUS Judges as a national security threat.

    B) He could order the DOJ to disregard policy requiring they don’t speak about/ investigate/ charge close to an election (thanks Comey).

    C) The President could order the DOJ to publish any evidence regarding a candidate being a foreign agent/ corrupt in any way.

    We know Thomas ignored disclosure laws- charge him. Take the normal Fed laws concerning the rest of the Fed Judiciary, and use those. Why should SCOTUS be exempt? Because they said so? Too fucking bad. Presidents have an official duty to uphold the laws…

    [Welcome back to emptywheel. Please use the SAME USERNAME and email address each time you comment so that community members get to know you. You attempted to publish this comment as “Mesalivin”; it has been edited this one time to match your established username “Namaste_MF.” Future mismatches of username may not clear for publication; check your browser’s cache and autofill. Thanks. /~Rayne]

    • timbozone says:

      Yes, it’s crazy that there’s no move to prosecute Thomas for this. It’s clear that he’s been lying about this knowingly.

  28. CaptainCondorcet says:

    I am left to wonder if Roberts is aware of how high he just made the stakes for Democrats. Whether he understands that he just gave a clear pass to a presidential candidate who has provided detailed discussions of how he will reiterate, personally and against groups. The stakes are arguably little higher for Republicans today than yesterday. But it seems so unwise to deliver such a starkly controversial decision that could cause such a strong backlash so close to an election that could turn the whole decision on its head. Or do Roberts and the others believe they know something about this upcoming November that we all don’t?

    • Rayne says:

      I don’t think Roberts gives a rat’s ass about political stakes, just that he’s done what his team and their sponsors expect him to do regardless of outcome.

      • CaptainCondorcet says:

        I hope you’re right. That’s obviously awful, but a more cheery possibility than my at times conspiratorial fears about Federalist Society election interference

        • Just Some Guy says:

          To take a recent example, he certainly didn’t care that the Dobbs decision might deliver the midterms to the Dems. A silver lining to an awful cloud.

  29. Dominic Dobson says:

    Once again our less-than-supreme court has F*CKED The American public! The evil and authoritiaran, 100% partisan majority has made the absolute WRONG decision for America. The majority of Americans are stunned that they can be so MAGA and stupid!

    • Rayne says:

      Listen, you’re preaching to the choir here. I know you’re a brand new commenter but we generally expect more than emotional offloading here; this not a microblog site like the dead bird app.

      I hope that cis-het white Americans who are disgusted by this screwing over come to realize this is how this country has looked to BIPOC/LGBTQ+/Disabled persons who rarely win and are too often denied their rights. Now *ALL* of us have been denied a more perfect Union and the opportunity to establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity which our nation’s forebears sought by instituting the Constitution to delineate and restrain our democratic government.

      Brown Americans have long feared being extrajudicially executed by the government without recourse; LGBTQ+ have similarly feared for their safety; disabled have struggled to access the same goods and services the rest of us have had, some of which are existential needs. Now *ALL* of us have to worry whether an irrational government will deny us our basic human rights because the Roberts’ SCOTUS is irrational and corrupt.

  30. synergies says:

    One of those memories one doesn’t forget is the way Obama looked at Roberts during his State of the Union address 1-27-2010. Citizens United had been decided a week before. Obama knew he was looking at a/the devil and not a very bright devil at that. Can you imagine 14 short years later, the two bit crooks have terminated abortion rights & the Chevron decision. So the environmental stop gags to weather destruction will be gone & will wreck havoc world wide but especially here in this large continent.
    What gets me most is the possibility of fledging Democracies being looted by these two bit crooked mfers as the planet dies.
    Two bits; a quarter with George Washington, heads side.
    I think we’ll muster the fight but this isn’t going to be pretty. Just my opinion.

    • PhoneInducedPinkEye says:

      It was obvious from the raft of voter ID laws in the early 2000’s that this was the direction the fascist wing was taking. When he had 59 senators they should have taken much more action to safeguard our democracy.

  31. earlofhuntingdon says:

    The Court has answered Dick Nixon’s claim with an affirmative, Yes! If the president does it, it’s not illegal. Forget Trump telling SEAL Team Six to assassinate his political rival(s). He can tell the FBI, part of the DoJ, to do the same thing, and face no legal liability for it.

    I guess we’d better work harder to put a Democrat back in the White House, because we’ve already seen how vindictive Trump is. With growing dementia, such personality characteristics would only become more extreme.

    • blackbird says:

      Good point. And Biden may be “old”, but people should focus on how old Trump will be when he finally leaves office. Once he decides he’s immune to term limits, he’ll be there till he croaks.

    • Rn_02JUL2024_1248h says:

      I share your fears.

      Regarding the charge to agencies… Somebody else raised an interesting question tonight. Namely, the president is now ostensibly shielded from prosecution for those putative actions. But the workers at those agencies are not the president. They enjoy no such protection. What do they do in these scenarios?

      [Moderator’s note: see your 12:48 am comment. /~Rayne]

  32. coalesced says:

    In light of Robert’s suggestion that Trump’s tweets likely fall “safely” within the outer perimeter of official conduct…..

    What if said “tweets” originated on Molly Michael’s desktop, was then forwarded to Dan Scavino’s phone where it was “modified” and posted to Trump’s “official” twitter account directly from Scavino’s phone? Official? unofficial?

    And what about the associated metadata and location/timing data of said “official” tweets? Forbidden from use by association? Or absolutely allowed regardless of categorization of said “speech” because metadata and cell tower/gps location triangulations are void of motive/intent? What about Trumps online activities (search history) during his “official” inactivity? Do any of these vanish because it “probes” motive or intent?

    Dr Wheeler nailed it months ago when she advised that the metadata/account connections/associations were the goldmine sought by and granted to special counsel, despite Musk’s legal temper tantrums. (“Poor Mr. Zebley.”)

    Is this really the best our top court can muster? This is the legal A team right? Someone actually put voice to this writing aloud early today, in open court? What an absolute embarrassment.

  33. luxmatic says:

    Unless a president is out shooting people on 5th St. themselves, they will need to tell others (civilian or military) to do so. Can/will there be repercussions to the “just following orders” people or does this new immunity power shield them as well?

    Long time reader here, and it took this dire topic for me to finally ask a question.

  34. Gnommon_CHANGE-REQD says:

    Everything I believe in was betrayed today.

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  35. soundgood2 says:

    I suppose if it were a murder that could be tried under state law it would be a problem for the shooter. If it were under federal law, the president could issue a pardon.

  36. William Bennett says:

    I mean, to be fair, it is in accordance with “originalist” principles. In the sense of “original” meaning “making shit up.”

  37. e.a.foster says:

    The decision certainly put a downer on my 1 July celebration. I’m sure it will be worse for Americans on 4 July.
    It would appear some have waited a long time for this decision and now they can progress with their agenda. Some of the comments Trump has made over the years about his opponents, wonder what will happen if he actually causes some of them bodily harm. It is a worry. Having seen some video of Trumps two eldest sons, wonder if he is going to arrange special ‘authority’ for them. Those two boys are a couple of slightly impaired wonders.

    At this point people may just have to get over a lot of things and vote for Biden. If Trump is elected, we can only hope he passes away quietly in his sleep prior to being sworn in.

    Some members of the American Supreme Court need
    to retire, quickly, while the country is still a democracy. Wonder if they did it for free or were they paid.
    Do wonder, if Trump is elected, what he will do to the late night t.v. hosts who always take a few wacks at him.
    This has been a very sad day for American democracy.

  38. harpie says:

    Marcy and lolgop have an emergency [< my word] discussion up at Ball of Thread:

    ‘They are going to rewrite the Constitution to basically permit a king’
    https://www.patreon.com/posts/107290006 8 hours ago

    What I want to talk about, what we’re going to talk about over the weeks ahead, is what brought us to this place. What brought us to the place where at least three and possibly five Supreme Court justices Believe outright bullshit. And because they believe that they are going to rewrite the Constitution to basically permit a king, to basically permit Donald Trump to enjoy impunity, to basically pave the way for an unaccountable authoritarian to come in if Donald Trump is elected in 2024.


    […] This is why we’re doing Ball of Thread.

    We need to tell the story of how we got here to as many people as possible as quickly as possible. With your support, we’ll continue to hone this effort to clarify and articulate the threats we face in a format that’s true to Marcy’s work. Nothing is more important right now. […]

  39. harpie says:

    Steve Vladeck did a Q & A Substack thread:

    Tonight @ 8:30 ET: Live SCOTUS AMA

    Tonight from 8:30–9:30 ET, I’ll do my best, through this Substack thread, to answer your questions about the Supreme Court term that’s now all-but behind us—including today’s ruling in the Trump immunity case; other major decisions from throughout the term; and where we go from here (TL;DR: sigh).

  40. harpie says:

    Jul 1, 2024 at 4:36 PM

    reflecting on the immunity decision a bit, what the Court seems to be saying is that every element of the executive branch is at the President’s disposal, no matter what he wants to use it for. his motives don’t matter. the office is a weapon to be wielded however he sees fit.

    ^^^ That [via Sarah Posner] reminded me of this:

    I better use some Tic Tacs just in case I start kissing her.
    You know I’m automatically attracted to beautiful—I just start kissing them.
    It’s like a magnet. Just kiss. I don’t even wait.
    And when you’re a star, they let you do it.
    You can do anything. Grab ’em by the pussy.
    You can do anything.

    • Ginevra diBenci says:

      I just pray E. Jean gets her money out of him before either of them dies.

      Thanks for all this, harpie.

  41. Zirczirc says:

    I wonder whether our six Republican justices (conservative seems the wrong word now) pay attention to their own rulings. They have spent a good part of this term arrogating what used to be duties of the Executive to themselves. This last ruling, to my mind, makes all of those previous rulings moot: Your Chevron ruling be damned, I’m the President and this official act of mine means I can ignore it.


  42. newbroom says:

    Okay. How do we ensure that our votes are taken and counted? I see electoral rebuke as the best voice available.

  43. Error Prone says:

    Being ignorant of the nuances, does this mean Biden can say he is firing five of the Justices, and if they object, “… for life,” Biden could replay, “We can handle that as an official act?”

  44. PensionDan says:

    Roberts seems a bit confused about how time works when he states the following ‘principle’:
    “At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
    As applied to Trump, a criminal prohibition against working with other government officials to throw out the results of a legitimate election cannot pose any danger of intrusion on the authority and functions of the Executive Branch, because Trump is no longer in the Executive Branch. The ‘principle’ is misstated.

    • zirczirc says:

      How does the “Government . . . show that applying a criminal prohibition to [a Presidential] act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch” if the Government official charged with showing this prohibition works for the President?


    • earlofhuntingdon says:

      John Roberts and his brethren, several of whom spent their earlier careers working for the Presidency, in the WH, DoJ, or similar agency, regard protecting the Presidency from accountability to the people who elect the President, as their highest goal. The argument probably sounded better in the original German.

      The caveat, of course, is that determining when and how the Presidency can and should be protected is up to them. The Constitution? Meh.

  45. Error Prone says:

    CNBC posted on YouTube Biden speaking on the decision taking about five minutes. No spin before, nor after, simply the statement, taking no questions. Two teleprompters, with Biden looking left and right as he spoke. How the situation is being handled for now. There seemed a bit of a slur in speech a time or two, but it’s there. And a slur or other speech problem arguably is not proof of any cognative inability. This is the Executive’s official statement about the immunity decision, so far.

    There had not been any whitehouse.gov posting about it when I looked this morning. It was an official act, not a campaign event or function

    • Rayne says:

      His stutter isn’t his only speech defect; his fluency or dysarthia may becoming more pronounced with age, or perhaps changes in his teeth. I don’t know if he wears dentures which can contribute to fluency problems.

  46. paulka123 says:

    I keep having a difficult time getting my head around the ramifications of this ruling.

    Like say Trump takes an action that the SC finds he doesn’t have the power to do, like say impose a Muslim ban or remove legal immigrants from the US.

    He can now just ignore the decisions without ramification? I guess that becomes a political question, but like, seriously, what restrains him at all?

  47. Error Prone says:

    We have a scope of immunity for official acts decision now. And if not immediately at least soon a remand. What seems feasible, is the lower court holding a pretrial hearing on whether there was official action or personal aims behind Trump’s conversations with Pence and others, so might Pence and others testify in an open court hearing? It seems the Prosecution might want that, no trial before the election but pretrial “official act” fact-finding of record. Not my original thought, Lawrence O’Donnell spoke of it (but no YouTube link given because it was part of an extended multi-person MSNBC YouTube post with lots and lots of spinning before his suggesting the possibility). So credit him. And it’s the possibility that is intriguing, not detailed spin. EW Crim law specialists with experience may flesh out likelihood views of whether that would be an expected or normal procedure. It seems sensible that such a hearing would expedite the entire thing, with a factual record set before the election, helping we the people.

    • Error Prone says:

      Moderation: This should have been posted on the Jack Smith’s Way Forward thread. It got posted here as the first thread I’d read. It fits better otherwise. If you agree adjust as you think best.

      [Moderator’s note: your call – if you think it fits better there, publish a duplicate in that thread and I can take this one down when you’re done. Otherwise leave it. /~Rayne]

  48. Error Prone says:

    The media will have to adapt. No longer “lame duck,” now the term is “interregnum.”

  49. WhispersRD says:


    By inventing immunity out of whole cloth, the Robert Court has done an amount of damage to the Republic that literally cannot be anticipated. The fundamental problem is that they’ve rejected a coherent theory of government in favor of short-term political gain. I really didn’t think they’d do this for Trump, of all people. But the SCOTUS majority is not just radical, but they can smell the power slipping away from them if Biden wins re-election.

    Their desperation is working against them. Legally, this is a disaster for America and a boon for Trump. Politically, this is a disaster for Republicans of a magnitude they haven’t seen since Watergate.

    I’m not so interested in the “what this decision means, legally” pieces because what it means in a historical perspective is nothing more profound than “We’ve got his back.” Whatever legal theory holds sway today is just as likely to be rejected next week, if that’s what SCOTUS decides is necessary.

    The question for us is what we’re going to do about it. Keep in mind “make better legal arguments” isn’t the answer. I’d say it’s a kangaroo court up there, but kangaroo courts are usually run with a more sober eye toward justice and consistency. SCOTUS is just a wing of the Trump campaign at this point. We need to view them as a hostile force.

    [Username on this comment is NOT your established username – it contains an extra “s” which I am NOT fixing this time. /~Rayne]

    • Rayne says:

      The volume of comments requiring moderation right now is very high. We don’t have the time to hand hold commenters who ignore the site’s minimum username standard and moderator’s requests. I shouldn’t even allow the comment above because it’s a FIFTH warning, above and beyond.

      One more time for all other community members: if your comments aren’t clearing promptly, at least HALF the time it’s because your username/email address do not match those you’ve been using. Check them within the (4) minute editing window or wait until one of the moderation team clears the comment.

      New commenters:

  50. David F. Snyder says:

    That authorizes the President to use all the powers of the Presidency to win re-election

    Biden needs to jump quick on using the full powers of the office of the Presidency to get re-elected. Cuz we know we don’t want iDJiT to have these powers.

    This is all just an implementation of Putin’s Plan release 2.0. Hopefully enough voters will stop this plan.

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