SCOTUS’ Republicans Allow Presidents to Use SEAL Team 6 To Execute Their Opponents

Until this morning, it was a joke that if a President sent out SEAL Team Six to take out, say, their opponent, their Vice President, or Sammy Alito as an official act, they would be immune from prosecution.

But the Republicans on SCOTUS have just given Presidents presumptive immunity for official acts.

I’ll post updates. But the effect of the opinion is to throw out the entirety of the charges involving Jeffrey Clark, and remand for further consideration on Trump’s pressure on Mike Pence and his public comments. It also prohibits the government from using Trump’s communications with his advisors. That guts the case.

From Sotomayor’s dissent:

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. 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. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

229 replies
    • earlofhuntingdon says:

      Hardly an apples-to-apples comparison. The Court, Donald Trump, and his now Fascist GOP know that Joe Biden would never contemplate the actions that Donald Trump dreams about every night. Start with the wet dreams of unaccountable power Trump has already made part of campaign speeches.

    • c-i-v-i-l says:

      I will cut off the quote from the DoI in the interests of this not being too long a comment.

      A list of George III’s official acts:

      He has refused his Assent to Laws, the most wholesome and necessary for the public good.

      He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

      He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

      He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

      He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

    • James T Carlet says:

      Trump should be “officially” flown to Guantanamo for humanitarian rehabilitation by presidential order. It’s for his own mental health (ours too).

    • Rwood0808 says:

      If you think Joe Biden, the king of “Incremental Change” and “What about the optics!?”, is going to leverage this new immunity he’s been granted into anything bold enough to counter trump, I have bad news for you.

      • Troutwaxer says:

        You’re certainly right about that. But a guy can dream! (And I’ve now read the whole ruling, that is, the first 8 pages, and it’s not quite horrible.)

        Sorry, I should expand on that point. It’s ‘not quite horrible’ because it does allow the prosecution to continue on some charges, subject to Smith proving that the conduct is outside Trump’s official duties. The really bad part is that it doesn’t seem to specifically create a cut-out for conduct meant to affect the results of an election.

        • Scott_in_MI says:

          It’s worse than that, because – as I read it, anyway – the decision that communications between a president and his advisors are inadmissible as evidence hamstrings any remaining case that Smith might bring.

        • Troutwaxer says:

          I’m about thirty pages into reading the decision, and what strikes me as important is that the Supremes seem to have their priorities wrong. The real question at hand is ‘What’s more important, executive powers or a fair election?’

          Obviously everything that happens to make our government (hopefully) just, and a government which follows the will of the people (to whatever extent it does) starts with fair elections. Without fair elections we have no claim to being a democracy, or even a republic.

          If the Supreme Court had the same level of wit and wisdom as a bowl of clam chowder they’d have recognized that fair elections are the basis of everything else that happens in our country.

        • xyxyxyxy says:

          We must keep the 2024 election and any lawsuits/cases arising about it out of SCOTUS.

        • earlofhuntingdon says:

          C’mon people. You cannot preclude the appellate courts from taking up a case. The intermediate appeal is a right. Appeal to the Supreme Court is (ordinarily) discretionary.

          This immunity decision is a promise by the Court that it will take up any appeal of a decision that materially goes against Donald Trump. That includes any number of suitable lawsuits related to the purported validity of the 2024 election.

        • originalK says:

          I’m not sure where anyone has gotten the impression that this supreme court believes in elections for president? The electoral college is what matters per the constitution, and state legislatures are who determines electors. That’s the patina of constitutionality that Trump (and his non-executive-branch advisors) was reaching for with his January 6 elector scheme.

          States have to have a “republican form of government” for their own governance, but they do not have to hold elections for purposes of the office of the president. If they do go that route, it supposedly needs to follow what we understand to be principles of democracy, but the court made a commitment to selective judicial oversight back in Bush v Gore.

          I am not a constitutional scholar.

  1. Badger Robert says:

    Official acts, like removing Judge Cannon’s entire docket to other judges? Like using federal resources to collect and count the ballots in contested states?

  2. Terry Salad says:

    Well, now terrified. Can someone please explain how this affects the January 6th case against Trump? Can it go forward with at least some of the charges?

  3. Eichhörnchen says:

    Based on Sotomayor’s objection, I’m guessing no attempt was made to delineate between “strictly official” and not.

    Can someone clarify what the logic is behind excluding the president’s own statements?

    • David Brooks says:

      There was an attempt: the acts need to be within his “conclusive and exclusive Constitutional authority”. Which to these ears is no clarification at all: a lower court can interpret any given act either way, and it’s back to the SCOTUS.

    • Ed Walker says:

      One very clear example is the pardon power. It is constitutionally vested in the President with no restraints. Any president is now free to accept bribes for pardons.

        • earlofhuntingdon says:

          Depends on how you define them, but the sense of acceptability is assuredly the reason the Court chose “gratuity.” As if a quarter million dollar luxury SUV were the same as a hefty tip to your pizza delivery person or your server at the Cheesecake Factory.

        • MsJennyMD says:

          Money given to a politician before a favor – Bribe.
          Money given to a politician after a favor – Gratuity.

  4. ggonsbutlongenough says:

    Does that mean Biden can remove threats to the Constitution that he’s sworn to protect, even if those threats are appointed, say, to the highest court in the land?

  5. Badger Robert says:

    Another official act: purging the federal computer system of all student loans that were generated by fraudulent trade schools?

  6. Badger Robert says:

    Another official act: loaning a flight of B-52s to Ukraine to act as drone lift aircraft, as they would never have to leave Ukrainian air space?

      • JAFO_NAL says:

        Stupendous idea. Terrain hugging high load capacity long range armored aerial drones armed to the teeth with defensive capability that are all currently slated for obsolescence anyway. Please make it so, Joe.

        • JAFO_NAL says:

          OT but how an AI engine regards your proposal:

          Based on the search results, it appears that converting an A-10 Warthog aircraft into an aerial drone is technically feasible, though not without challenges. Here are the key points:
          Technical Feasibility: Converting manned aircraft to drones has been done before. For example, F-4 Phantoms have been converted into target drones, costing about $800,000 per aircraft and taking around 4 months to complete. This suggests that the process is technically possible for other aircraft like the A-10.
          Potential Benefits:
          An unmanned A-10 could potentially be more survivable than smaller drones in combat situations due to its armor and ability to withstand damage.
          It could serve as a flying testbed for future unmanned combat systems and loyal wingman drones.
          Removing the pilot and ejection seat would create space for additional systems and sensors.
          Developing the necessary software for semi-automated modes and to take full advantage of the A-10’s performance would be complex and expensive.
          The A-10’s lack of fly-by-wire systems might require additional modifications for remote control.
          Alternative Perspectives:
          Some argue that purpose-built drones like the MQ-9 Reaper are more cost-effective and have longer loiter times, making them potentially better suited for certain missions.
          Others suggest that an optionally-manned configuration might be more practical than fully converting the A-10 to an unmanned system.
          Existing Concepts: The Defense Advanced Research Projects Agency (DARPA) has proposed a concept called “Gunslinger,” which is a drone missile system with an internal gun, potentially serving a similar role to the A-10 in close air support missions.
          While converting an A-10 to a drone is technically possible, it would require significant investment in software development and systems integration. The decision to pursue such a conversion would likely depend on a cost-benefit analysis comparing it to other options like purpose-built drones or newer manned aircraft.

        • Rayne says:

          Yes, your comment was off topic. Don’t do it again especially on a day like to day because it comes across as a means of derailing conversation on the topic.

        • JAFO_NAL says:

          In reply to
          July 1, 2024 at 2:43 pm
          Don’t do it again

          Noted. Won’t happen again.

  7. Rwood0808 says:

    Not surprised at all.

    The only question now is what country offers the best view of the “The United States” season finale. Rated R.

  8. Badger Robert says:

    If the President declared that the Sp Ct justices were revolutionaries trying to subvert the Constitution, would he be immune if he just shut down the Sp Ct? It would be well within the scope of his executive obligations.

    • Badger Robert says:

      And arrest enough Republican Senators to guarantee the confirmation votes. Protect against enemies, foreign and domestic, part of his oath if my memory is correct.

      • tomm-aip says:

        No need to arrest them, just prevent them from entering the Congressional chambers. That might be more palatable.

        The only valid use of this grotesque power is to take action to eliminate the power for all presidents, current and future.

        • Booksellerb4 says:

          Still reading (the decisions, owie, ow, ow) but I also thought the Executive Branch could somehow decline, reduce or refute the expansion of power…as an expression of Its duty to Faithfully Preserve, Protect and Defend the Constitution. Bold/Underline “Faithfully” ?

          Not quite badgered by the Badger just yet.

          This shit is blowin my mind, kinda. (sad face smiley)

    • CovariantTensor says:

      “Another official act: add four justices.”

      In all seriousness, if the Democrats miraculously gain control of the government, the legal path to adding justices should be seriously considered–a priority even. Or else, imposing term limits. Something urgently needs to be done. The damage done by the “conservative” majority this term exceeds anything I have seen the court do in my lifetime.

  9. Troutwaxer says:

    A quick search of the document did not reveal anything like a ‘balancing test’ for how to determine whether an act was official or not. So if I understand things correctly, we’re right where we were before, with Smith arguing that the acts were not official and Trump’s attorney’s arguing that they were, and no guidance in how to separate the two. If I’m wrong on this some please explain why.

    Is the upshot of this that the trial can resume?

    • Badger Robert says:

      And would it be an official act to clear the DC judge’s docket to allow the Trump trial to proceed? And the inevitable further interlocutory appeals would be removed from the DC circuit court, by an official act, of course.

      • Scott_in_MI says:

        I understand that people are upset about this ruling, but can we please not use it as an excuse to be grotesquely stupid? The acts that you’ve proposed here, and most of the ones you’ve suggested in repeated postings above, are not plausibly within the power of the presidency, and thus cannot be considered “offical acts.”

        • Clare Kelly says:

          The lede on this piece:

          Discussed in oral argument on this case.

          There’s been no clarity as to what constitutes an official act “within the power of the presidency”.

        • Scott_in_MI says:

          Reply to
          Clare Kelly
          July 1, 2024 at 12:00 pm

          I think we can pretty confidently assume that micromanaging the judiciary is out of bounds, which covers most of BR’s absurdities.

        • John Herbison says:

          SCOTUS tasked the District Court with making certain determinations in the first instance upon remand. Fortunately Judge Chutkan has guidance in distinguishing official and unofficial acts from the D.C. Circuit’s decision in Blassingame v. Trump, 87 F.4th 1 (D.C. Cir. 2023), a case arising in the context of a civil suit for damages.

          The Court of Appeals there opined:

          When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act. The Office of the Presidency as an institution is agnostic about who will occupy it next. And campaigning to gain that office is not an official act of the office. So, when a sitting President running for a second term attends a private fundraiser for his re-election effort, hires (or fires) his campaign staff, cuts a political ad supporting his candidacy, or speaks at a campaign rally funded and organized by his re-election campaign committee, he is not carrying out the official duties of the presidency. He is acting as office-seeker, not office-holder—no less than are the persons running against him when they take precisely the same actions in their competing campaigns to attain precisely the same office.

          87 F.4th at 4.

    • klynn says:

      Thank you for this observation. IANAL and would appreciate more discussion on the need of a “balancing test.”

    • Ed Walker says:

      As I read it, the trial can proceed. The next step is to determine what acts were official. Then the MAGAts on SCOTUS will hear an appeal from whatever the District Court decides. Probably next year. Or the year after. Or never, because the opinion basically says if elected Trump can halt the prosecution and fire the special counsel without fear of accountability.

      • earlofhuntingdon says:

        Pretty much how I read it. If you can’t use motive, however illegal the intent, or a president’s conduct as evidence, there are few avenues to prove the conduct and its illegal character, even if the conduct is private. Roberts left a few avenues, footpaths, really, but they look a lot like one-way streets.

        This is a vehemently intellectually dishonest opinion, issued by six political partisans, who want an imperial presidency, so long as they have sole authority to decide the emperor’s reach and sanctity.

        • Sue 'em Queequeg says:

          Which sole authority could be overruled the moment they do anything other than what the person with the _real_ sole authority — the emperor — happens to want at that moment. In other words, they’d have no real authority at all. (A president, of course, doesn’t have that power, but it’s truly not clear we are talking about a president in the current understanding of the word if 45 becomes 47.)

          It still baffles me that people with money and power are capable of talking themselves into the idea that they’re different — that unlike lesser mortals they are not expendable, and they actually do have a relationship with the man. One area where “the rules are different for people like me” does not necessarily apply.

    • HorsewomaninPA says:

      IANAL, but if trying to define “official” vs. “unofficial” acts, I think back to how many times Trump went to Administration officials and lawyers asking them to do something outside of their “official” capacity and he got shot down. (The DOJ, his WH lawyers, Brad Raffensberger, Pence, etc.)
      He then decided use “unofficial” channels, like Rudy, the Kraken lady, other non-governmental players to work the angles. And I would say that those Congress people did not have any official responsibilities with respect to the election.
      In his official capacity as President, he had all the levers – official levers – of the U.S. Government to resolve an issue, but none would because what he wanted them to do was outside their official capacity.
      So, if he had to use “unofficial” people – those who did not have official responsibilities with respect to the election, doesn’t that make what he did an “unofficial” act?

  10. Alan_OrbitalMechanic says:

    Looking for opinions. Doesn’t this ruling mean that it is impossible for the president to issue an illegal order? All he has to do is claim this was “for the nation” and that is that.

    I keep reading this “Seal Team Six” hypothetical narrative. I don’t really know much about those guys in particular but I do believe that many military officers would refuse to carry out an assassination order against a domestic or allied politician on the basis that it was an illegal order. That defense for refusing an order would seem to disappear.

    • David Brooks says:

      Others have pointed out that their oath prevents them from carrying out an illegal act, even if ordered by a superior. Are you arguing that a Presidential order would make the act not illegal *for them*?

      • paulka123 says:

        I find it hard to fathom that a President, ANY President, couldn’t find soldiers to follow his orders-legal or otherwise.

        Oliver North springs to mind.

    • MWFfromSAT says:

      I can see where the military under Biden would view any such order to eliminate a political opponent as “illegal”….but what happens if trump is elected and replaces military leadership with sycophants? You think those generals would consider trump’s orders to be “illegal” or would they carry out his orders?

      [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’ve attempted to publish three comments as “MWFinSAT” which does not match “MWFfromSAT,” your established username. I will correct these but PLEASE make a note of your username and apply it consistently. Also check your browser’s cache and autofill. /~Rayne]

  11. ApacheTrout says:

    Biden should today order the immediate arrest and jailing of Trump today.

    Release all the evidence that he’s acting officially in accordance with his Article 2 Powers to protect and defend the US from attempted coups and theft of top secret documents.

        • ExRacerX says:

          Geese and ganders are both lesser evils than Donald Trump—just stay away from the nest when there are eggs or goslings about, & you’ll be fine. You might step in a little goose shit.

          Recalibrating your aphorism, I’ll say one man is a compulsive liar, a grifter and a convicted felon with no respect for the law.

          The incumbent President is a respectable, reasonable, career politician who respects the law.

          So no, what’s good for one is NOT necessarily good for the other.

  12. Sherrie H says:

    “Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be.”

    This is exactly backwards: “bold and fearless” people don’t tremble at being held accountable, they do what needs to be done and accept the consequences.

    • Troutwaxer says:

      The judge can do what they should have done in the first place: recognize that elections need to be fair, and that conduct intended to unfairly change the outcome of an election is not an official act. Then they can ask the prosecution and defense to argue whether the charges are sound and take evidence as necessary.

      IANAL, but I think Chutkan erred in not doing this in the first place.

      • Paulka123 says:

        Didn’t trump’s attorney agree, at oral arguments, that some of the charges do not fall under official acts?

      • Rugger_9 says:

        We’ll see how quickly she tees up the evidentiary hearing given the stakes and importance of the question. Judge Chutkan can draw on the SCOTUS, DCC and her own briefings and transcripts for a list of possibilities to be considered but this can be moved quite quickly I think though IANAL. The principal arguments are already in the record.

        Judge Chutkan just needed a ruling and she’s wise enough (as is Jack Smith) to prep the hearing SCOTUS wants.

        When she rules, I have no doubt the defense will appeal as well but this also can be an emergency basis item. Even if the SCOTUS majority drags their feet again, the questions will likely be before them and the Ds can use that as evidence about election consequences.

        • jdmckay8 says:

          I have recurring thoughts a lot of federal judges will speak up, signing declaration similar to Sotomayor’s dissent. Something along the lines, that in good conscience they cannot ignore evidence (this opinion makes go away) in commission of a crime.

          With Chevron judgement and some others including this one in mind, I ask myself at what point people in authority who’ve followed the law/precedents/recognition of SCOTUS ultimate legal authority… jump ship and fight back. Along the lines of bad-things-happen-when-good-people-do-not-stand-up-in-a-crisis.

          Maybe better put, without doing so we have a constitutional crisis. I hope large swaths of federal judiciary don’t pretend we do not.

        • jakebob_CHANGE-REQD says:

          Isn’t the SCOTUS crew about to go on vacation?

          I’m not saying they wouldn’t do it, but wouldn’t it be just more egg on the faces (and mushroom on the breath) of the Seditious Six if they had to race back to DC to hear Trump’s appeals of Judge Chutkan’s RULING that [choose your favorite crime(s)] were unofficial acts, and the trial must proceed?

          Or is everything on hold until DC Court of appeals restates their previous ruling?

          [Welcome to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We have adopted this minimum standard to support community security. Thanks. /~Rayne]

      • earlofhuntingdon says:

        Chutkan’s handling of the case is just fine. She and Smith did what was necessary, given the law and the posture of the case at the time they dealt with it.

        The Supremes intentionally tilted the law and the playing in favor of the defendant, because they don’t want him subject to the rule of law.

  13. buckethead says:

    Everyone’s making SEAL Team Six jokes but couldn’t Biden also just appoint 4 or 7 or 12 more justices to SCOTUS? Then the decision on whether that specific act qualifies as immune would fall on the newly majority-liberal court.

    • Rayne says:

      Where does the power to appoint more justices come from? Not the Constitution’s job description, but the total number of justices POTUS may appoint?

      Think about it and try to come up with a solution to that barrier.

      p.s. Welcome to emptywheel, first time commenter.

      • Rugger_9 says:

        Congress would do it and has several times in the past (i.e. 1800s). I don’t see the current House majority signing on but if the House flips and the Senate holds, it becomes a real possibility. Now that we have 11 Circuits plus the DCC, four new Justices would each have one Circuit to oversee leaving the Chief Justice as a backup if said Justice cannot cover a case (i.e. sickness, availability, recusal).

        FDR’s court-packing attempt in the ’30s over the ‘alphabet agencies’ wasn’t illegal at all, but even his Congress wasn’t willing to give FDR that much power.

      • Elvishaslefthebuilding says:

        I agree, this decision does not provide authority for addition. It arguably provides authority for a declaration that the conservative justices have violated the Constitution and are treasonous, and summarily executed. This is obviously never going to happen unless Trump is re elected; in that case, something analogous to that will happen, as even impeachment has been rendered impossible.

      • John Herbison says:

        Increasing or decreasing the number of seats on SCOTUS is the prerogative of Congress.

        • Rayne says:

          I was trying the Socratic method there. We shouldn’t have to spoon feed this to commenters as this isn’t an entry level site.

    • Alan King says:

      Roosevelt wanted to increase the size of the Supreme Court to get some blocked New Deal initiatives underway. The wikipedia article seems very good

      Just as today, there was a lot of tension in the legal community over the idea of a “Living Constitution”. In those days the living constitution side were called the realists, and the other side (the Scalia side) were called the formalists. The New Deal legislation created institutions that were far beyond what anyone could find in the constitution, so the formalists objected. But the court-packing idea was very controversial. Eventually, a formalist member announced his retirement and Roosevelt was able to appoint a realist.

      So, Rayne, no I don’t think Biden can pack the court. But maybe he can order an assassination and create an opening or two without threatening the formal constitutional order.

      • Rayne says:

        How many appeals courts do we have and why do we have that many? It’s not packing the court when the size of the court keeps apace with the rest of the judiciary.

        • earlofhuntingdon says:

          Exactly. It’s keeping up with the times. Rather like how much the federal minimum wage should be now, had it been updated. It’s purchasing power peaked the same year MLK and RFK were assassinated. It’s now $7.25, and was last updated in 2009.

        • John Herbison says:

          There are thirteen U. S. Courts of Appeals. Eleven geographic circuits, the District of Columbia Court of Appeals, and the Court of Appeals for the Federal Circuit, which has exclusive appellate jurisdiction over all U.S. federal cases involving patents, trademark registrations, government contracts, veterans’ benefits, public safety officers’ benefits, federal employees’ benefits, and various other types of cases. Congress last created a new Court of Appeals in 1981 when it divided the former Fifth Circuit into two separate appellate courts — one including Texas, Louisiana and Mississippi and the other including Alabama, Georgia and Florida.

        • Rayne says:

          Thanks for the detail. I did know there were 13 appeals courts but I needed to make the point it’s not stacking. The background helps — makes no sense why SCOTUS wasn’t expanded.

  14. Badger Robert says:

    By not stating that official acts would be as commander in chief, and as specifically mandated by Congress, Roberts got 6 votes. That means that a more specific decision would not have gotten 5 votes. Dred Scott anyone?

  15. earlofhuntingdon says:

    Chuck Rosenberg, who is normally quite good, seems perilously Pollyannish about the effects of the immunity decision. He says take a chill pill and see what happens in Chutkan’s court, and wait to see how it fares on review, ultimately, by the Supreme Court.

    Given the decision this Court has just made, aggressive but traditional rule-of-law decisions Judge Chutkan might make will not survive this Court’s review. Any determinations Judge Cannon might make, otoh, are likely to suffer a different fate.

    • Ed Walker says:

      This is the standard position of every Democratic professional. They are impervious to the reality that lefties are always right.

    • Ginevra diBenci says:

      If they are vigorously and energetically abusive enough, they are getting the message that they could become president.

      • Magnet48 says:

        Shortly after Obama was first elected I saw a black mother & grandmother with their kids/grandkids in a store. The little boy maybe 5 was running around making some noise when the mother addressed him as Mr. President, the phrase itself getting his attention & making him slow down. I was so thrilled that finally a little black boy had a fantastic role model & now what will we have? Bullies already with a role model as president. There will be no end to upheaval on all fronts if that is allowed to occur. As if all the drunken & crazed magats were not bad enough

  16. GrantS01 says:

    Most hoped against yet suspected this eventual outcome. Sotomayor’s five-alarm fire dissent falls short on how disastrous and anti-American is this absurdity of a ruling.

    Can Congress even correct this if they had the willpower?

  17. Tom Christopher says:

    It seems to me on a quick read, that Trump’s case where he stole all the documents, classified or not, after he was no longer President, would not be affected by this ruling? In any case, Biden can now, while he is President, take dangerous classified documents (if in Trump’s hands) home to read WHILE he is President, and just not return them ever.

    • paulka123 says:

      Apparently, Thomas in his dissent makes the argument that the special counsel is unconstitutional so Cannon has something to chew on in the coming weeks.

      • CovariantTensor says:

        If the appointment of a special counsel suddenly becomes unconstitutional, couldn’t AG Garland just take over the case himself?

        • Spencer Dawkins says:

          I don’t think this is “AG Garland just take over the case himself” territory. If all the special counsels disappear in a puff of Trump-flavored smoke, I would guess that DoJ would figure out which U.S. Attorney’s Office has jurisdiction for the many and varied charges Trump has been indicted for, and handle him like DoJ would handle any other convicted felon.

          That’s a guess, but DoJ DOES prosecute criminals who don’t own a majority of Supreme Court justices now, so why would a criminal who does own a majority of Supreme Court justices be any different?

  18. Ithaqua0 says:

    Pardons are up for sale… once upon a time that would have been viewed as disastrously corrupt, but now it’s the least of our worries.

    Time to donate (again.)

  19. Eichhörnchen says:

    Joe Biden, in his official capacity as POTUS, should get before a camera immediately to inform the American people of the details of this ruling and remind them of the consequences of elections.

    • Scott_in_MI says:

      If I were Biden, I would also issue – and publish – an executive order stating that all members of the executive branch who are evaluating action options for the president are required to abide by the pre-Trump assumptions of presidential criminal liability. I don’t know how much practical effect that would have, but it would stake out a strong moral position in the face of this travesty.

      • Eichhörnchen says:

        Oh god no. That would make Biden look like a dictator. In and of itself a negative, but it would also effectively erase the line that makes him the only acceptable candidate running for the presidency.

        • Scott_in_MI says:

          Stating that his administration is going to continue to judge its own actions under the assumption that a president can be prosecuted would make Biden look like a dictator? I don’t follow your logic.

        • Scott_in_MI says:

          Reply to Eichhörnchen

          No worries. Apologies for any lack of clarity in the original post.

  20. Just Some Guy says:

    Pardon my ignorance for asking but the context for the so-called “official acts” immunity that the Supreme Court just granted relates to TFG’s attempt at installing Jeffrey Clark as Attorney General — how can something that never happened be an “official act” by a President? Putting aside the obvious-to-one’s-face notion that the attempt to install Clark was in furtherance of a failed coup *ahem* campaign which isn’t an official act either, how can there be immunity here when the attempts were the acts?

  21. Amicus12 says:

    The caption of the blog post has it right – the decision is a road map to dictatorship.

    Trump should have declared marital law and sent in the Marines to prorogue Congress and the election certification, akin to what we did in Haiti.

    If reelected, he won’t make the same mistake twice.

    Justice Barrett has it right in her concurrence – without DOJ being able to put on evidence of Trump’s official conduct it’s unclear how much of a coherent case remains to be presented. I suspect it is possible. I also suspect that the further review of what actions are deemed official versus private will be its own separate time consuming saga.

  22. Mattpete26 says:

    Can we dispense with the notion that Trump will be held accountable other than by his fellow citizens who need the information about what he did? Indict his co-conspirators and present all the evidence of the conspiracy.

    • Spencer Dawkins says:

      I’ve waited more than 24 hours after the Supremes announced TRUMP v. UNITED STATES to comment in any meaningful way here, and the people who didn’t wait have asked most of the questions I would have asked, BUT you’re poking at something I haven’t seen discussed here, or elsewhere.

      If Trump and Some Federal Employee Named Fred plotted to do something illegal, but the Supremes announced TRUMP v. UNITED STATES giving Trump the presumption of immunity, doesn’t that hang FRED out to dry? Could/Should/Would Fred be indicted, with an indictment that names Trump as Unindicted/Unindictable Co-Conspirator One, so everybody around Trump goes to jail?

      Or does the presumption of immunity apply to every federal employee who has shaken hands with Trump while serving under Trump?

  23. earlofhuntingdon says:

    A berobed but bare-breasted Supreme Court seems to be carrying the flag of insurrection as it imperiously stands on the ramparts.

    If Trump wins, the Court will have created a legal and institutional foundation for virtually any conduct he or his Heritage Foundation advisors imagine. If Joe Biden wins, this decision will remain a legal landmine in the field of Democracy.

    Should be a good motivator for Democrats to get out the vote, and prepare for the thousand lawsuits the GOP will launch, and its patrons will pay for, to get Trump back in office, despite his having lost the election. Reforming the Court should be a priority. But Democrats can’t do that if they don’t win the WH and solid majorities in both houses. Lots of work to do.

    • David Brooks says:

      I thought Delacroix’s “Liberté…” was supposed to be a Good Thing, but as we all know, that was another French Revolution, and I presume you know what that unfortunate movement led to?

        • David Brooks says:

          It was commemorating the French Revolution of 1830, aka the July Revolution, but we’ve gone too far down this rabbit hole.

          So I’ll keep digging. In 2012 we were walking our 10-year-old grandson through the Louvre on the way to the Mona Lisa, when he suddenly pointed at “Liberté” and said “Viva la Vida!” Good taste in music, that kid. Not to mention a dual lesson on the fleeting nature of absolute power.

  24. wa_rickf says:

    Doesn’t this ruling put the ball back into Judge Chutkan’s court to determine what are official POTUS acts?

    • Troutwaxer says:

      That’s how I read it (though it does seem to exclude the part about Clark.) Maybe I misunderstood something?

    • earlofhuntingdon says:

      Yes, but how much of her judgment would survive appeal by a Supreme Court that issued this decision?

      • Troutwaxer says:

        That’s a tough one, of course, and I think the problem is essentially Judge Chutkan’s to solve. IMHO their first opinion on the issue wasn’t strong enough, nor was it proof against a negative decision. (Though I’m not sure how much Smith gave her to work with – did he bring up the issue of fair elections being more important than immunity?)

        I should note something else: That lower-court judges are sometimes reluctant to take a stand on major issues. I think that’s generally the right thing to do, but every once in awhile they do need to go big, and I’m not sure Chutkan went big-enough.

        • earlofhuntingdon says:

          Nonsense. It’s not Chutkan’s problem to resolve. The Supreme Court has tied Chutkan’s hands. She will do her thing, but the Court just telegraphed how much of a strong opinion from her is likely to survive appeal.

      • Troutwaxer says:

        When I say it’s “Chutkan’s to solve” I mean that her next ruling can put things into a moral framework that makes it hard for the Extreme Court to rule against her (as she should have done with the opinion that’s just been dealt with.) The problem goes something like this, in terms of how the morality is seen. “Does the President have immunity” versus “Does the president have immunity when interfering with the outcome of an election?” The first question can be answered “Yes, the president continues to have immunity, as they did previously” and nobody will pay much attention.

        Phrase the specific question the Supremes will have to answer as “Does the president have immunity when interfering with the outcome of an election,” however, and you might just get a different answer. At the very least you’ve forced the Supremes to make it starkly clear that they don’t believe in fair elections.

        One of the faults I find with Chutkan is that she didn’t do an adequate job (and maybe Smith didn’t give her much to work with in his pleadings) at ‘shaping the battlefield,’ which in this case means giving the Supremes the most difficult question to answer the way they want to without utterly destroying their own credibility.

    • GlennDexter says:

      But Chutkin cannot consider Trump’s motives for inciting the January 6th riot ? Homeless can be jailed and we now enjoy an Imperial Presidency. That is my takeaway from this court’s session.

  25. Bay State Librul says:

    KO nails it

    “Well thanks Supreme Court. Now King Biden I can officially declare Trump a terrorist and officially imprison him officially without trial (and without consequences)”

    Fight fire with fire?

  26. PeaceRme says:

    So technically if Biden were amoral he could take Trump out! As an official act to save our democracy from fascism??

  27. SteveBev says:

    I appreciate the question I am about to pose is perhaps a long way down the list of concerns about the implications of this decision, but:

    What remains, as a matter of practical reality, of the restraint imposed by the constitutional clauses according to which a President may be Impeached?

    If a President is Consitutionally Immune from prosecution for core Offical Acts and presumptively immune for acts within the outer perimeter of their Official Acts, and insulated from evidence of such conduct being gathered or used in legal proceedings, how might any article of impeachment be framed and/or any evidence gathered or used to justify any such articles?

    Given the narrowing by SCOTUS of bribery, and the vast swathe of immunity and impunity they have created for other conduct which might amount to High Crimes and Misdemeanours, it seems to me that the prospect of Presidential action being restrained by a Co-equal branch is becoming vanishingly small.

    • Scott_in_MI says:

      Impeachment is not a criminal procedure, and thus the rules about inadmissibility of evidence in criminal proceedings don’t apply to impeachment.

      • David Brooks says:

        It seems to me that the SC’s attitude to plainly awful acts while President would be that it’s in the People’s power to elect a Legislature that would invoke impeachment and a guilty finding (I’ll wait until the laughter stops).

        This would line up with Roberts’s wish for the electorate to grow up, but assume that logic is followed, the next election after the awful acts delivers a grown-up Congress, and the same election sees that President gone: is impeachment of an ex-President still an option? The Blessed McConnell doesn’t seem to think so.

        • earlofhuntingdon says:

          Roberts and his brethren on the right are counting on the electorate NOT to grow up.

      • SteveBev says:

        I know that Impeachment is not a criminal proceeding, and I know that Impeachment Trials are not bound by rules of evidence.

        Nevertheless, this decision is about the immunities which attach to the Office of President and then goes on to deal with the consequences of those immunities as they affect criminal processes. The immunities, inherent in the office, according to this decision, affect the how the President might be held accountable via impeachment.
        How might a President now be either prosecuted or impeached for eg Bribery, under the expansive notion of immunity for official acts?

        • paulka123 says:

          To put more succinctly, how can a president be impeached for high crimes and misdemeanors if he is immune from high crimes and misdemeanors?

  28. Iggypops says:

    So, if you ask a state to find you 11,700 votes in your presidential capacity, that’s OK. You tell a crowd of people to hang your VP because you don’t like the job he’s doing as your VP – no problemo. A polluter doesn’t like some rules the EPA has on the books, you don’t need an environmental scientist since this no longer about the science, get a good lawyer and convince a judge. Better yet, BUY a judge: you have to admit – the money that’s been spent to buy the Supreme Court has been well worth it to the GOP, the donors, Putin, Trump, etc.

  29. SVFranklinS says:

    So if I’m reading this right, this is that President is immune for “official acts,” but no clarification on what an “official act” is, so this gives the courts power over the presidency, in deciding what is “official” and what is not? So it will turn out that anything a democratic president wants to do is not “official,” but a republican act, no matter how heinous, will be “official.” And deciding this bogs down in the courts for years.

    Where was that originalist idea (didn’t they originally think the president was not a king?) when you need it?

  30. scroogemcduck says:

    If POTUS is absolutely immune for core constitutional acts.
    And if the Constitution makes the POTUS Commander in Chief of the armed forces.
    Then he has absolute immunity for ANY unlawful order given to the armed forces.

    What kind of country have these fools just created?

    • David Brooks says:

      But does the subordinate have immunity for either carrying out that order, or for refusing to? SC today did not address that.

        • Spencer Dawkins says:

          Yes, but timing is everything. Trump could have pardoned all of his accomplices for any actions taken before January 20, 2021, but he DIDN’T. Now, he can’t.

          The lesson I would take away is to never leave a meeting with POTUS without a signed pardon for all actions taken before I left the meeting. Is there another lesson that an accomplice smarter than a sheep is supposed to take away?

  31. Max404Droid says:

    It would seem to me that Judge Merchan should take the opportunity to throw the book at the scofflaw on 11 July.

  32. Bay State Librul says:

    I’m so fucking stupid. I was living in
    the past when the Supreme Court was rational.

    From John Dean

    “When the president does it, that means that it is not illegal.”
    Richard Nixon, 1974

    Affirmed, US Supreme Court, 2024

    • Yankee in TX says:

      It’s a simple formula – All animals are equal but one animal is really, really especially equal.

    • GSSH-FullyReduced says:

      So Donny gets his Trump card: Get Out Of Jail Free.

      Treason: the betrayal of one’s own country by attempting to overthrow the government through waging war against the state or materially aiding its enemies.

      But selling nuclear codes is not treason because it will be an official act when Donny accepts Putin’s bribe(s). Right?

      It’s all so confusing.

  33. Sussex Trafalgar says:

    This ruling is hardly a surprise. Roberts and Kavanaugh have repeatedly insisted that they don’t believe the Judicial Branch should be making decisions that should be made by the Legislative Branch. It’s time for the Democrats to get rid of the Tea Party now Maga Republicans in Congress and pass new laws for the SCOTUS to consider.

      • paulka123 says:

        IANAL, but from what I understand, Biden can just shoot all of the Magat Republican lawmakers.

      • Sussex Trafalgar says:

        Obviously, the Democrats can’t do what I said until they become the majority in the House and Senate.

        To do that, the Democrats need to understand how and why they are losing House elections in “red” and “purple” states and then find or entice good candidates at that level to run against the former Tea Party now MAGA Republicans now in the House. Same analysis for the Senate.

        Lastly, the Democrats need to understand how and why they are losing or close to losing key electoral college states that have elected Bush once and Trump once for president.

        The SCOTUS ruling today doesn’t identify the official acts, nor the unofficial acts, of the presidency. That was intentional by SCOTUS.

        The DC Appeals Ct. ruling also avoided identifying such acts in their ruling earlier this year. That was also intentional.

        The Legislative Branch will eventually identify the official and unofficial acts of the presidency as they relate to the US Constitution and to the Presidential Oath of Office.

        The question is does one want the Democrats to identify these acts or leave it up to the former Tea Party now MAGA Republicans.

        I prefer seeing the Democrats do it.

  34. algebraist says:

    I bet that immunity clause doesn’t extend down though. The whole scenario of using Seal Team 6 to take out a rival, even with a “finding” doesn’t excuse the said members of Seal Team 6 from murder charges from having done so. I believe members of various militaries have rules about not following illegal orders…

    Just because the man can give the order, doesn’t mean it’ll be explicitly followed in those “heightened circumstances”. Obviously only referring to the Seal Team 6 example. Plenty of other places for things to go bad.

    However, my inexpert takeaway from this is it’s only for “official acts while President”. This is not a get out of jail free card for the stolen files (happened while not President anymore) or various other things he is accused of (bribery of a porn star, before being elected). He’s not off the hook yet.

      • scroogemcduck says:

        Exactly – it can’t be illegal. Even if it can, the President can preemptively pardon everyone involved and make it legal.

        • paulka123 says:

          First act of a 2nd Trump Presidency: To change the name of the President to King

          Second act of a 2nd Trump Presidency: Elections are over.

        • algebraist says:

          The order itself won’t be … the actions taken in executing it (pardon the phrasing) could be.

          And my knowledge is hazy but doesn’t a pardon automatically assume guilt on behalf of the person being pardoned?

    • Yargelsnogger says:

      Sure, but with unchecked pardon power that isn’t really an obstacle either. All you need is to find (create) one unit in the military that was willing to perform the act. Then the President can assassinate all rivals (presidential and congressional), ensuring that no one dares to impeach him. It might be hard for Biden to find such a unit, but how long do you think it will take Trump to do so?

  35. Caladan says:

    Seems like maybe SCOTUS needs a few personal object lessons in the consequences of their rulings.

    1) Officially order the IRS to begin a full Audit of Thomas, Alito, Roberts, etc. I would also include their billionaire sugar daddies in this as well. spread the pain.

    2) Order Treasury Dept. to seize any questionable SCOTUS assets. Houses, RVs, Stocks, Bank Accounts,

    3) Issue an Executive order disregarding the the “Loper Bright Enterprises v. Raimondo” decision. SCOTUS made their ruling, now they can try to enforce it….

    [Welcome to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters; use the same username each time you comment. We are moving to a new minimum standard to support community security. Please also use the SAME EMAIL ADDRESS each time you comment; the one you used today doesn’t match the one you used on your last comment. We don’t even require a valid/working email address, just consistent use of the same address. /~Rayne]

    • Caladan24 says:


      It’s been 15th mouths since my last comment, sorry I didn’t remember the email I used.

      on another note, when I tried to search for my previous comment, I couldn’t access the post. The site’s search function returns a page of results, but there are no active links to access the returned pages.

      [Thanks for updating your username to meet the 8 letter minimum. Sorry search doesn’t work on comments, it’s annoying but it may also suggest comments aren’t being mined by LLM. /~Rayne]

      • Caladan24 says:

        Its not the comments, the entire returned list of site posts are not accessible. it makes sense to obfuscate historical comment threads, but you should still make the main post accessible.

        • harpie says:

          Rayne, the same thing is happening for me [for the first time] today.
          Enter search terms, the list comes up, but the entries are not clickable.
          Sorry for adding one more thing to your list.

  36. BreslauTX says:

    This case had more temptation than the GOP SCOTUS could handle.

    They were faced with a choice between

    1. Do the “Right Thing” and get the DC Trial rolling.

    2. Put their Thumbs on the Scale and try to get a GOP WH in November so they have a chance to maintain/add to their GOP majority on the SCOTUS.

    Alito, Thomas, Gorsuch and probably Kavanaugh are already there on the Ideological Warrior stuff, so they just needed to get just one of Roberts and Barrett to Buy In. Roberts and Barrett might not agree all the time with the Ideological Warriors, but they would prefer to maintain a GOP majority on the SCOTUS rather than maybe eventually get pushed into a Minority if the WH stays with the Democrats for a while.

  37. Bobster33 says:

    Does this now mean that Biden can wire tap convicted felon Trump’s phones, email accounts and those of his inner circle? The House fond that convicted felon Trump engaged in sedition in the House second impeachment. Could that finding now be the basis for Biden monitoring all communications of the convicted felon Trump?

    • PJB2point0 says:

      I think you still have to get an Article III judge to authorize a wiretap, DOJ cannot do it on its own (unless there is some FISA provisions I am not knowledgeable about). However, since pardons are not apparently only official but “core constitutional” powers of the Presidency, doesn’t it mean all pardons, including self-pardons, are immune not only from prosecution but even scrutiny as to motivation?

  38. Upisdown says:

    Legal experts, I have a different question. Some of the Mar-a-Lago documents case charges are for obstruction, false statements, and tampering with evidence. How can those charges be considered “official acts”? Even if Trump gets immunity for taking the documents, how would he have protection for lying to the DOJ or obstructing justice? Because he was long gone from office when he committed those crimes.

    • Scott_in_MI says:

      As far as I can tell, this decision doesn’t implicate the documents case in the least – all of the conduct with which Trump is charged in that case happened after he was president.

    • Just Some Guy says:

      Those charges are all post-Presidency. This ruling, bad as it is, doesn’t confer immunity on acts undertaken by a former President.

  39. FrictionBlistered says:

    OK. This is our guide to presidential misbehavior going forward, to be clarified in the future in court battles that would have been horrifying yesterday. What are the limits now? If the president orders a Secret Service agent to shoot your dog, can the agent obey, and will you be satisfied with your options for redress? How about if I’m a militia member, sworn to support a certain president, and that president orders me to shoot your dog? Am I protected? Are you?
    We have recent experience with a president who has always liked cheating, stealing, and inflicting pain. Is there any doubt that the court’s majority wrote this new law with him in mind?

  40. scroogemcduck says:

    If the Conservative justices thought there was even a 0.000001% chance that Biden would order Seal Team 6 to bury them all at sea, this would have been a 9-0 ruling the other way.

  41. Fancy Chicken says:

    So I get that a president’s communication with other government officials can’t be used to prosecute them. Is it also the case that POTUS’s own statements can’t be used against them?

    But even with those limitations, isn’t there enough communication between say Eastman, Chesbro and other nongovernmental advisors and campaign staff to hold parts of the Jan 6th case together?

    I had an anxiety attack after reading the Loper Bright ruling and today I’m just utterly sick to my stomach. How in the hell can this immunity ruling be neutralized?

    • HikaakiH says:

      “How in the hell can this immunity ruling be neutralized?”
      A non-GOP majority in the Senate for the next [remaining lifespan of Thomas and Alito – expect 15+ years] and then you have the problem of getting a suitable case for them to touch this. That second part is the big problem. Having the political conditions for a reliable non-GOP majority in the Senate is unlikely to generate the sort of conduct to give rise to a case involving a President actively subverting US democracy. There might be as good a chance of changing this ruling via a constitutional amendment. (NB IANAL – I’m not even American.)

  42. pH unbalanced says:

    So my question is, if we wanted to draft a Constitutional amendment that would restore things to our previous understanding, what would that look like?

    Obviously, an amendment is a really tough ask, but if Biden wins in November, I bet you could get a lot of Republicans who would back it, in addition to all the currently appalled Democrats, so it might just be possible. (If it languishes past that it probably becomes impossible, though.)

    • earlofhuntingdon says:

      When you consider the current makeup of Congress and GOP control of state legislatures, this is what it would look like:

      • CaptainCondorcet says:

        Scrolling through the comments quickly, thought I missed something, checked again.

        Clever and depressingly true. only 12 states need either (A) no constitutional way for a purple electorate to hold a ratification vote overruling the [fill in the color] legislature or (B) have a populace so [fill in the color] that the amendment would never pass even a ratification vote.

        The amendment process was created before the near-complete subjection of state interests to nationwide party interests. The founders never dreamed of the correlation in votes between CA and RI representatives. Without trying to sound hyperbolic, in this age of instant online (dis)information I suspect we may never see a “top-down” amendment passed again absent a Hollywood-styled crisis.

  43. harpie says:

    From the #J6TL:

    12/27/20 TRUMP [Still at M-L] twice calls ROSEN.
    During the second call, Rosen conferences in DONOGHUE, who takes extensive notes.
    Trump mentions efforts made by PERRY, JORDAN, MASTRIANO

    TRUMP to ROSEN / DONOGHUE [from the notes, my numbers]:

    “people tell me Jeff [Bossert] Clark is great, I should put him in” []
    “People want me to replace D.O.J. leadership.” […]

    1] P: Country is up in arms over the corruption
    2] “You guys may not be following the internet the way I do”
    3] P: “Don’t expect you to do that, just say that the election was corrupt + leave the rest to me and the R. Congressmen.”
    4] P – this is election-turning fraud [no quotation marks in original]
    5] “We have an obligation to tell people that this was an illegal, corrupt election.”
    6] “Nobody trusts the FBI”
    7] “I’d like to request”

    • harpie says:

      1/2/21 TRUMP [with MEADOWS, Cleta MITCHEL and Kurt HILBERT] calls GA’s SoS RAFFENSPERGER and counsel GERMANY, pressuring them to “find 11,780 votes”

      […] TRUMP: “So what are we going to do here folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”[…]

      Marcy [w/ screenshot of WaPo call transcript]:
      5:17 PM · Jan 3, 2021

      Trump’s demands aside, this is really the cruz of the call: Mark Meadows asks for direct access to GA data so Trump can find the votes he needs, Germany says no, that’s not legal, and Hilbert says, Great, deputize our lawyers.

      • harpie says:


        During their conversation, Trump issued a vague threat to both Raffensperger and Ryan Germany, the secretary of state’s legal counsel, suggesting that if they don’t find that thousands of ballots in Fulton County have been illegally destroyed to block investigators — an allegation for which there is no evidence — they would be subject to criminal liability.

        “That’s a criminal offense,” [TRUMP] said. “And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer.”

    • harpie says:

      7/25/19 TRUMP’s “perfect” call with President ZELENSKYY of UKRAINE [while withholding funds Congress had already appropriated]

      TRUMP: “We’d like you to do us a favor, though”.

      And what was that “favor”?
      TRUMP wanted Zelenskyy to announce that they had discovered dirt on Joe Biden.
      Official Presidential act?

    • harpie says:

      [Rayne, I’m so sorry for the extra work I’m making for you today. :-( ]

      H. BIDEN – ADDITION re: 12/27/20 call, NYT:

      […] During the call, Mr. Trump also told the Justice Department officials to “figure out what to do” with Hunter Biden, President Biden’s son. “People will criticize the D.O.J. if he’s not investigated for real,” he told them, violating longstanding guidelines against the White House interfering in criminal investigations or other law enforcement actions. […]

      December 27, 2020, then Deputy Attorney General Donoghue took handwritten notes of a call with President Trump and Acting Attorney General Rosen, showing that Mr. Trump instructed Mr. Rosen and Mr. Donoghue to “figure out what to do with H[unter] Biden” and indicating Mr. Trump insisted that “people will criticize the DOJ if he’s not investigated for real.”6

    • harpie says:

      Re: 12/27/20 TRUMP / ROSEN conversation: this is from the DONOGHUE testimony:

      FBI will always say there’s nothing there. The leaders there oppose me; A[gent]s support me.

      [p4] – [“FBI” in margin] I made some bad decisions on leadership there, but I was laboring under an illegal investigation – Special Pros[ecutor]. Should never have been commenced

      You figure out what to do with H. Biden – people will criticize the DOJ if he’s not investigated for real. […]

      [p6] [D]: Told him flat out that much of the info he is getting is false, +/or just not supported by the evidence – “we look at the allegations, but they do not pan out

      – P – this is election-turning fraud [no quotation marks in original]

      “We have an obligation to tell people that this was an illegal, corrupt election.” [quotation marks in original]

      – People tell me Jeff Clark is great, I should put him in

      – People want me to replace DOJ leadership

      [D] fine, but won’t change the Depts’ position
      -you should have the leadership you want

      My original notes reproduced here [There’s SO much more]:

      [RAYNE, I don’t need the comment that’s in the pokey! :-)]

      • harpie says:


        – bookies had me at 100% on election night – dropped to 32% in 4 or 5 hours
        – never happened
        *>>>- DAG – will look at whether have more ballots in PA than registered voters – should be able to check on that quickly but understand that the DOJ can’t + won’t snap its fingers + change the outcome of the election, doesn’t work that way.

        ALL now okie dokie!

        I feel like I’m having a nervous breakdown right now reading that.

  44. Vigetnovus says:

    I’m surprised no one has mentioned this: Trumps tweets leading up to and on J6.

    Are they official acts?

    • fatvegan000 says:

      According to SCOTUS, yes, they are official.

      They took all the charges in the indictment and addressed them in this ruling – all in Trump’s favor.

      So, rather than the “ruling for the ages” as Kavanaugh pompously pronounced, it was nakedly a ruling for Donald Trump, President.

      Also it was a major power grab they took with impunity because they know full well Biden won’t touch one toe over the line that existed in yesterday’s America. Ever. Even if he could summon the energy. So I wish everyone here would stop making up scenarios where Biden magically becomes a bold warrior and slays the evildoers on the right, because that’s just rubbing salt in the wound.

  45. Scott_in_MI says:

    Did anyone else notice that Thomas used his concurrence for the sole purpose of giving Aileen Cannon cover for ruling that Jack Smith was unlawfully appointed?

    • earlofhuntingdon says:

      Yes, Thomas gave her free rein to help re-institute Trump’s unrestrained reign, telling her the Court would look favorably on her work, regardless of how still tied to the rule of law even the conservative 11th Circuit might be.

      I’m so old, I remember when the Court limited itself to the actual case or controversy before it.

    • tmooretxk says:

      I really miss the days when Thomas went a decade without participating in oral arguments & was considered the ultimate back-bencher, and absurd dissents weren’t utilized as fodder for the next round of RWNJ lawsuits.

  46. Legonaut says:

    Remember when Republicans railed against “activist judges”?

    Pepperidge Farm remembers…

    • ExRacerX says:

      Apparently they were only opposed to “activist judges” appointed by Barack Obama.

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

    I find myself thinking about the best next steps for defeating Trump in November. What are people’s favorite voter registration and get out the vote organizations?

    An example: the Progressive Turnout Project — — with its Postcards to Swing States effort.

    What other efforts do people suggest?

    • Sussex Trafalgar says:

      A new grassroots version of the 1964 Freedom Summer Project is warranted as too many of the children and grandchildren of those who were able to vote in 1964 and 1968 are not registered to vote now or do not vote if registered.

      • c-i-v-i-l says:

        I went to the Poor People’s Campaign rally in DC on Saturday. One of the main messages was that poor and low income Americans — who are significantly underrepresented among voters — are the biggest potential swing vote in the US. Part of their pledge is “We commit to mobilize and touch 15 million poor and low-wage voters to tell them they have the power to rise and reconstruct our government.” A lot of their efforts are through religious and labor organizations. It would be good if their website and state campaigns made it easier to find out about local get out the vote efforts. I participated with some local PPC canvassing and voter registration efforts last summer. For more information about their goals:

  48. thequickbrownfox says:

    It’s time to (again) refer everyone to the writings of Masha Gessen.

    The SCT has just turned the law on its head. What’s been taught in the prestigious academies of law is, as of now, not what the law is–the law is what those that have power want it to be. This isn’t a surprise to Gessen, because she predicted it.

    All things in common
    All people one
    “We come in peace – ”
    The orders came to cut them down

    (last stanza of “The World Turned Upside Down”)

  49. earlofhuntingdon says:

    Yale LS grad and Senator, J.D. Vance, claims this decision is a victory for the rule of law. Yale should rescind his degree and diploma. But then Harvard would have to do the same for a lot more degrees issued to now GOP politicians, starting with Elise Stefanik. /s

    • P-villain says:

      Vance popped off over the weekend about how this decision was going to go. It’s almost as if he somehow knew in advance.

  50. Molly Pitcher says:

    After today’s rulings, from now on, there will always be another Trump just around the corner, unless Biden wins and packs the court.

  51. The Old Redneck says:

    This passage in the whole majority opinion is quietly doing a whole lot of work:

    On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct.

    This very well may be a message to Judge Chutkan to dump what remains of the indictment for January 6th. And if she doesn’t get the hint, then they’ll take yet another appeal on it and spell it out for her.

    • Ed Walker says:

      Good point. i hope Judge Chutkan has the courage to ignore the implication and do whatever will give the prosecution its best chance. Whatever she does will be appealed anyway, might as well make MAGA SCOTUS own it.

      • earlofhuntingdon says:

        Yeah, if she does that, and her decision is appealed ultimately to the Supremes, we’ll get to see how quickly the Court can issue another judgment.

        • MsJennyMD says:

          Roberts was quick to reject Steve Bannon’s request for an appeal, now in prison. The Supreme Court could do it quickly if they choose. Lacked swiftness with the immunity case. Delay, delay, delay.

    • CaptainCondorcet says:

      He’s good with the prepared speeches and has good writers. This could be a silver lining to recharge people after the (not-fully-his-fault) anemic debate performance.

  52. David Brooks says:

    Cloud: this takes away our hopes for the court cases which, as has been pointed out by bmaz, is more about revenge than justice (our hopes, that is, not the cases themselves).

    Silver lining: properly deployed, this is an immensely powerful weapon in the election campaign. Trump wants to do this thing – roll the tape – and he now knows he will have absolute immunity.

    Somehow work into that some variant of Masha Gessen’s First Rule: “Believe the tyrant. He means what he says.”

    • David Brooks says:

      Afterthought: it’s possible that the promises Trump makes on the stump, and those proposed by P2025, are awful but lawful. But a political ad doesn’t need to be strictly logical, merely alarming.

      Rayne, the above comment was briefly put on the naughty step. Did it trigger some automated mechanism, or was it my recent behavior? If either, I’d like to know so I can avoid it later.

  53. paulka123 says:

    Just going to put this out there.

    Trump’s NY crimes that he was found guilty of were committed when he was President. It seems to me the argument will be made he is immune.

      • paulka123 says:

        I don’t believe he was convicted of conspiracy. IANAL, conspiracy might have been part of the crimes, but it seems to me that this SC would find that Trump, er, a President would be immune from state crimes as well as federal.

        • Rayne says:

          From the NYS Statement of Facts:

          1. The defendant DONALD J. TRUMP repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election.
          2. From August 2015 to December 2017, the Defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.

          The 34 counts may be attached to the specific checks signed but the crime began before Trump was elected and was intended to protect his campaign, not the presidency and the country. And they’ll still have a tough time with state versus federal if they want to argue states have greater rights to destroy the federal administrative state.

  54. Jacquie_NJ says:

    I post this with great self consciousness, but my uncertainty haunts me…

    Trump has been demonizing immigrants since he first announced his candidacy in 2015. He regularly talks about setting up detention centers and deporting undocumented immigrants. There are a lot of MAGA folks who share his disdain for immigrants and support this campaign pledge.

    There is no possible way for him to actually deport 12+ million people. What’s to keep him from a “final solution” in the name of national security? Has this SCOTUS decision just cleared the way for mass murder?

    Rayne: This is the email address I’ll be sticking with. Apologies for the earlier switch.

    • Rayne says:

      This is a possible angle of approach Biden could take now as the folks who are working on Project 2025 and other parallel projects have been developing lists of people they want “removed.” This is a threat to national security and the nation’s continuity.

    • David Brooks says:

      Remember only the President is immune. In this hypothetical scenario (which I don’t buy for one moment) he wouldn’t be doing the murdering – the blood would mess with his makeup. So we would be looking at mass pardons for the executioners.

      That’s just a dramatization of the general consequence; the immune President can’t carry out every illegal act alone. So it’s either pardons by the thousands, or get Congress to pass a law immunizing anyone who can claim they are just following orders.

  55. rattlemullet says:

    Well, it was great as long as we could keep it. Almost 248 years to the day of the issuance of the Declaration of Independence and 236 years of the ratification of the Constitution, the Supreme Court made by edict, grievous actions specifically cited in the declaration to the King by the colonist, are now incorporated into the “law” of the land.

    The only way out is by crushing republicans of all stripes by voting them out.

  56. HdudeNaz says:

    We are now officially a (fascist) Judocracy.

    Rayne: This is the email address I’ll be sticking with. Damn auto insert.

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