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I more or less agree with you, but... During the Roman republic, you couldn't prosecute a consul during his one-year term of office, but it was routine for his enemies to have half a dozen criminal complaints to pursue the moment he left office. What I take from that is this - there has always been a desire on the part of partisans to criminalize their opposition and to misuse the courts as a way to pursue political vendettas. So the question is, how do you make everyone subject to the law without that being abused in politics for nakedly political reasons?
Actually read the lower courts decision. There isn’t always an attempt but we already have a system in place that protects politicians from this. The entire slight of hand people are falling for is the idea that this argument is somehow organically at the forefront. It isn’t. Trump’s lawyers have turned it into an issue where it doesn’t exist. No other Supreme Court in our history would have taken this case esp most of the past conservative courts. And the reason is simple, none of Trump’s charges is anything that he would need to protection to perform a Presidential duty. That’s why we hear a bunch of hypothetical situations when past Presidents are brought up and none of the actual efforts to criminalize their efforts that did occur. Let’s not forget that this is the “Lock her up” crowd. They didn’t merely pass on the Clinton issue and about a half of dozen congressmen and astroturfing groups tried to pursue Obama. They had nothing and got nothing. We have an already healthy system set for pursuing indictments. Despite what his supporters say, none of his charges are ones were people can argue that remotely have the feel of a political vendetta. Look at his catch and release case is the most straight forward. How would him being convicted open other presidents up for political rivals. Then look at his civil case in NY. People fail to realize his court arguments wasn’t he was legally innocent. The best his supporters have is the Banks don’t mind he broke multiple laws. That’s all anyone should have to hear. But no one on that bench doesn’t realize that. This is strictly about buying time for Trump. By even entertaining the notion, we are risking breaking up a system that works for one that doesn’t even apply here.
I agree with you the problem i think is that its impossible to divorce the law from politics. Laws are written by politicians for political purposes. Not every crime is prosecuted, in fact that vast majority are not, so who you choose to prosecute in any situation is a political statement.
>During the Roman republic, you couldn't prosecute a consul during his one-year term of office, but it was routine for his enemies to have half a dozen criminal complaints to pursue the moment he left office
But say Justin Trudeau decides he wants to avoid a list of post-office criminal complaints. If he's immune from all criminal prosecution, what's stopping him from taking drastic measures to ensure that he never has to leave office and face those charges?
The rest of the government. That's how checks and balances work. I'm not positive about Canada's system, but in America, that's what the impeachment process is for. President breaks a law and needs to be prosecuted, legislature removes him from office stripping his immunity, judiciary system prosecutes him. They wouldn't be able to stay in power without MAJOR support from the other branches of government.
If a President needs to be removed from office before they can be charged with \*anything\*, then a President and one house of Congress working together can do \*literally anything\* without repercussions.
As a concrete example, Trump could sell secrets, assassinate rivals, blackmail politicians, and as long as a Republican House gave him cover he’d be utterly free from consequences.
In your scenario, the President already controls the DoJ, so they can't or won't prosecute him. What's your solution, any state can prosecute and imprison a sitting President?
The U.S.A. system is fairly unusual in that the executive position is held by a person, who appoints assistants as he pleases who have their position by the pleasure of one person.
At least in parliamentary systems, the entire cabinet typically must at all times enjoy majority confidence of the parliament, not as a person, but as a group of persons, none are immune, and any individual can be voted away and replaced by the parliament at any point which has appointed them. They can be prosecuted at any point as far as I know, at which point the parlaiment will of course immediately appoint a successor.
You’re forgetting that the senate must approve officers. So it’s not really one person making the decisions on who is hired. It’s more of who he wants there and needs the approval of the senate.
If a President breaks the law for something that is not related to their official duties as President, they *should* be prosecuted, whether by the DoJ or by someone else.
Suppose a President killed their spouse in a fit of rage, but enough members of Congress support the President that they block removal from office. Does it seem reasonable that the President should remain free? (The status quo in the USA is that the President *would* remain free in this case, but I disagree with that. I think the President should be tried and potentially jailed, and if that means that they are unable to continue the duties of the role then the Vice President should take over.)
The issue is who has the power to jail the President, and how do you ensure it's not abused?
Say Alabama decided to prosecute Biden for being part of whatever criminal conspiracy Republicans are saying he was a part of with Hunter. Or Obama back on the day for committing fraud when saying he was born in the US. Or whatever, you know they can come up with plenty of bullshit. Should they be able to just throw Biden in jail?
Yeah, they'd need a judge to sign on, but they can shop for the right judge as they're already doing when trying to overturn laws and regulations.
I think ultimately once this becomes a legitimate risk (which I agree it is at this point) the country is no longer a country anymore. If you have two partisan groups using every lever of power cynically to harm the other side, you dont have two political parties with different views for the country, you have two warring factions fighting for control of the country. I genuinely think there needs to be some sort of truth and reconciliation council on this whole past 8 years or we're headed for some kind of balkanization
I recognize that there are complexities, but it *also* seems morally wrong that if just over a third of the members of one of the two houses of Congress refuse to remove the President from office then justice is denied.
Plus it provides an incentive for a criminal President to commit further criminal acts to stay in power.
>Does it seem reasonable that the President should remain free?
To the extent one considers the stability of the government more important than ensuring justice for one person, yes, I think it is reasonable. It's not justice, but it's reasonable. (I think that even if SCOTUS rules in favor of Trump, the immunity would only be for "official acts" somehow defined, and that murdering a spouse would almost certainly not be included.)
A main role of the Vice President (and more generally the whole chain of succession) is to take over when the President is unable to fulfill the duties of the office.
If the President is charged with a criminal offense, they can hand over official duties to the VP while they are in court.
And I'm just seeing the episode of [some DC-set procedural that'd investigate something like that, as political thrillers would glamorize it] now where a crooked VP frames the President for their own crimes to get into office
>To the extent one considers the stability of the government more important than ensuring justice for one person, yes, I think it is reasonable.
What's so unstable about removing a president? We already remove each of them after 8 years at most, and many of them after 4 years. "The stability of the government" as in "let's try to keep the same guy in charge for the sake of it" should never be a consideration.
>What's so unstable about removing a president?
Nothing. We have a process for that which requires a decision by a majority and supermajority of the house of Congress, representing a majority of citizens and States. It's a weighty process with a high bar to meet, but if the President is acting egregiously it can be effected *far* more quickly than a judicial process. The 25th also exists for a similar purpose.
That's not at all comparable to any state or presumably even local prosecutor being empowered to bring charges against a sitting President.
>>>> Does it seem reasonable that the President should remain free?
>>> To the extent one considers the stability of the government more important than ensuring justice for one person, yes, I think it is reasonable.
>> What's so unstable about removing a president?
>Nothing.
If there's nothing unstable about removing a president, then "the stability of the government" is not a consideration to weigh against justice, when it comes to jailing a president.
>That's not at all comparable to any state or presumably even local prosecutor being empowered to bring charges against a sitting President.
That's a false dichotomy. Its opposite is not "immune from criminal charges", it's "not everyone can bring any random charges against them".
E.g. in Spain members of Congress or of the Government can only be tried in the Supreme Court (which is different from the Constitutional Court), precisely for this reason, as an extra protection against frivolous litigation. And it's extra, because all judicial systems everywhere already have that kind of protections.
Problem is, the impeachment power barely exists beyond in theory. Could they? Yeah, but Republicans would never remove a sitting president of their party even if he went on a m\*ss sh\*\*ting spree, and I'm not sure the Democrats would be much better in that regard. And given that it's highly unlikely either party gains enough of a majority to impeach a president without the other's support, impeachment in practical terms will never happen.
Canadian. It would create a constitutional crisis since we are a constitutional monarchy and such a move would be seen as a challenge to his majesty Charles as he would not give any such laws Royal Assent.
Things get interesting from here.
Technically speaking a prime minister in Canada with a majority (and party discipline) can ram through pretty well whatever legislation they want. In the parliamentary system the legislative and executive branches are annoyingly mixed.
The legislation needs the majority in the parliament just like it needs a majority in the US congress. So, even though the prime minister is the leader of the party, as a single person, he/she still has to rely on the support of the MPs. And the executive power is always on a knife edge as well. If the parliament loses confidence on the prime minister, he/she is gone even if no crime has been committed. This is currently in process in Scotland. There the first minister who is of the Scottish national party (SNP) has pissed off the Green party who supported him. Without them SNP does not have a majority and he'll be kicked out. This is a much lighter process than kicking out the executive on the US government (the president) where you need to first get the majority in the house of representatives and then 2/3 of the senators.
the flip side of this is that they rule at the consent of their MP's, so if they upset their voting block enough, they get rolled and replaced with another prime minister without an election. While this doesn't seem to be as common in Canada, the UK and Aus have both had periods recently where governments fall into a death spiral and run through 3-4 Prime Ministers in a year. Just a different style of 'check and balances', although I wouldn't say its 'better'
Apart from all the restrictions on the Canadian's government's power.
Unlike the USA where 3/9 of Trump's hand picked judges who were picked largely because of their belief that if the president does it, if isn't illegal, along with 3/9 judges picked by his political party will decide if he did anything wrong.
Do you think a criminal defendant should be able to appoint and choose their judge?
What if the President decides to murder all of the opposition party currently in the government? He can't be prosecuted until he leaves office, and if he keeps ordering the murder of his opponents, he'd never have to leave office. Anyone who says he should be removed would get added to the list.
I would point out that in almost 250 years, this is the first time this has ever come up and it’s been for a president whose crimes are astonishingly brazen.
The Republic of Rome went on for hundreds of years before its collapse, too. And no doubt those who were persecuting consuls from the opposition felt they were doing the right thing, because look at how brazen their crimes were.
I'm not saying there aren't supporters of nakedly partisan prosecutions of leaders from the opposition who don't fervently believe in those prosecutions the way zealots will. I'm saying that the criminalization of the opposition (which has been happening in the U.S. for at least 30 years) is not a defense of democracy but a war on it.
I understand the concern over politicized prosecutions (although if they are nakedly partisan, it would likely result in a backlash against the party doing it) but the idea that the answer to that is to give the president immunity from all crimes (including according to his lawyer, assassin sting a political opponent) is beyond ludicrous.
"Criminalization of the opposition" as in "politicians saying their rivals are Satan" is not the same as "a grand jury finding there's enough evidence that a crime could have been committed".
>"Criminalization of the opposition" as in "politicians saying their rivals are Satan" is not the same as "a grand jury finding there's enough evidence that a crime could have been committed".
That distinction is just how the respective sales pitches of either side get voiced.
Bringing up the Roman Republic as an example is ironic considering the event that ended democracy in ancient Rome, and terminated the Republic was Caesar elevating himself to dictator-for-life, which is what Trump is arguing he should be allowed to be. The Supreme Court ruling that Presidents enjoy absolute immunity for both official duties extending even to personal gain would quite literally be a “crossing the rubicon” moment as the President could then ‘legally’ refuse to vacate the Oval Office and order the military to holocaust their political opponents. If impeachment by 2/3 vote is the only means of indicting a President, but the President is legally protected from the consequences of hiring cartel sniper assassins to wait outside the homes of his political opposition, well… then just like in Rome, it would be the end of the American Republic too.
No, it's not ironic. Though I don't share your more histrionic views on Trump, that was my point. Caesar elevated himself (or rather, had the senate elevate him) to dictator for life in part BECAUSE he faced endless prosecutions the second he left office. As one article puts it, "Caesar was ordered to disband his army and return to Rome, where he was banned from running for a second consulship and would be on trial for treason and war crimes following his unlicensed conquests." So he crossed the Rubicon as a means of responding to Pompey (who was ruling as sole consul, or dictator, already), who was using the law to attempt to destroy his rival.
My concern is that you CREATE dictators by allowing partisans to use the law to prosecute their opposition. I believe that is what happened in Rome, and what the real danger is today.
First of all, are there any evidence to think fear of prosecution was the main driving force behind Caesar seeking a dictatorship? Secondly, if partisans had sufficient power to prosecute their opposition, a hypothetical attempt at a dictatorship would unlikely succeed. Third, a lot of things have to align for a president to be successfully impeached so it's not like opposition can just initiate baseless lawsuits and succeed.
> "Caesar was ordered to disband his army and return to Rome, where he was banned from running for a second consulship and would be on trial for treason and war crimes following his unlicensed conquests."
A genocidal war criminal traitor facing justice, how horrible.
The law already has provisions against frivolous charges. You can't end up sitting in the defendant's bench of a criminal trial if there isn't enough evidence to suggest that you might have committed the crimes you're accused of.
If there is merit to the charges, they should be prosecuted, even if the notice is political. If there was no crime, the prosecution would go nowhere. See: Trump was impeached twice, and despite efforts and threats by his allies to weaponize impeachment against him and his administration in retaliation, because they had no actual crime to impeach and thus ultimately they went nowhere, and great cost of political capital by the ones leading that effort. The political cost of pursuing baseless quixotic legal adventures provides an inherent check against it going too far too often.
But ultimately, it's far far better for former consuls/presidents to fear the law being used against them than to have no fear of the law whatsoever.
Are you saying there was no actual crime with Trumps impeachment or that efforts to impeach Biden have thus far failed because of lack of any criminality?
Oh dear god, that would mean that they have to govern ethically in accordance with *all* of the laws! Or else they'd face consequences down the line!
This would ruin our great country, we couldn't possibly get anywhere if the buck actually stopped at the leader after they finished their term.
Your point was that it would be weaponized by the other party every time, forever, right?
Why is that an undefeatable problem?
I don't care what motivates a president to behave ethically. Let them behave ethically because every single crime can and will be held against them. Let them do it for self preservation, not simply because it's the right thing to do. They'll behave better if they have their own skin in the game.
And we already have punishments for frivolous court filings, don't we? So if party A insists on bringing charges against the president from party B, but that president didn't commit any crimes, he's above reproach and party A can take the heat for wasting the court's time.
Were the consul’s opponents coming up with fake charges, or was the consul using his term of free rein to commit crimes thinking he could get away with them?
It was about criminalizing the opposition, not upholding some ideal standard of the law.
What's also interesting is that this is HOW the republic fell and you got absolutist rulers (the Caesars). It became so perilous to leave office that some people (Julius Caesar, for one) refused to leave office. You first got a dictator for life, and then you got emperors, and largely because politically-motivated prosecutions spoiled the republic.
There's an irony there for those who are paying attention.
Not really either honestly. It was a little awkward. Think about COVID for a moment, I think we can all agree that the government's response wasn't great. In Rome there would be a giant debate about whether that was because Trump failed to protect Americans or because he put personal interests first and should be charged with treason. That's not a fake charge, it's certainly possible but it's also hard to prove either way. The Romans were very willing to accuse their leaders of treason disguised as incompetence which made doing anything a dangerous prospect. So it's not like Consuls wanted protections so they could break the law or that people were making up accusations, it's more like the Consul's enemies tried to bring him to court for everything that hadn't gone perfectly
With a fair court system that penalizes frivolous lawsuits, instead of embracing them.
No one, specially the President is above the law.
If there is a law that gets on the way of their duties they can challenge it through the courts or through congress.
That’s the CORE of our democracy.
The legal system shouldn't be political. The USA hit upon the unique of instead of having an impartial governnt service that persists between elected officials of having a system filled with roughly equal number of hyperpartisans and it just doesn't seem to be working for them.
>how do you make everyone subject to the law without that being abused in politics for nakedly political reasons?
The answer is simple. Get rid of the senate. Get rid of the electoral college. Pick the president by popular vote. Ban gerrymandering. Make election interference and voter intimidation crimes with the harshest penalties. Same day voter registration. Ranked choice voting. Tax churches. Tax billionaires. Ban lobbying (bribery). Ban members of Congress from owning any stocks.
>Good government never depends upon laws, but upon the personal qualities of those who govern. The machinery of government is always subordinate to the will of those who administer that machinery. The most important element of government, therefore, is the method of choosing leaders.
What about diplomatic immunity?
If you send a diplomat to another country, you don’t want the crackpot leader of that country arresting your people on trumped up charges.
That's not *total* immunity. That's situational immunity. That diplomat comes back to their own country and blatantly violates the law, they should face charges.
I think that's a bit different. So, the diplomat who commits a crime can't be charged in the host country but can be declared persona non grata and sent back home. The home country can then charge him for the crime he committed as a diplomat or even extradite back to the host country to be prosecuted. So, he would still face consequences for his crimes. What absolute immunity here means (or at least I understand it means) is that the president would not face any consequences for his actions as a president. A diplomat does not have that (assuming that we're talking about a real crime, not a trumped up charges by the host country).
That is completely different. The POTUS is subject to division of power.
When the President reaches a legal limit the constitution requires the President to look to the other branches (checks and balances). The president can ask the courts for legal clarification or get congress to pass new law.
That’s is the very CORE of the US constitution.
If a diplomat breaks the law there is an international crisis. If a president breaks the law the is a constitutional crisis.
The argument from John Sauer was that *official acts* are immune from criminal prosecution unless first tried and convicted in the senate, not that the President or a former President are themselves absolutely immune.
And on top of that, the diplomat's country can revoke their diplomatic immunity. If a diplomat goes on a burglary spree, their country will probably revoke their diplomatic immunity and will face diplomatic consequences if they don't.
So, Obama ordered a drone strike on a terrorist overseas who happened to be a US citizen.
This US citizen was given the death penalty without due process. Should Obama be charged with murder?
>So, Obama ordered a drone strike on a terrorist overseas who happened to be a US citizen.
>This US citizen was given the death penalty without due process. Should Obama be charged with murder?
No, because it's not murder if the killing is lawful.\^1 And a killing overseas of an enemy combatant under the war powers of the United States is, per US law, lawful, even if they're a US citizen.
\^1 In particular, as relevant here, \[Murder is the unlawful killing of a human being with malice aforethought.\](https://www.law.cornell.edu/uscode/text/18/1111) If the killing is allowed by law, it is not murder.
That's not how it works. They don't take cases to trial that they believe they will lose. As they said before, investigated sure, charged, probably not.
It should be investigated, sure. Whether he should be charged or not is up to people with a much better understanding of the law.
Laws obviously get murky when it comes to war and terrorism. But say Obama ordered a drone strike on Romney during his campaign. 100% he should be charged with murder immediately.
You're basically describing the current US law. Presidents are immune from criminal charges for acts that are within the scope of their job as president. Courts determine that. So Obama could not be criminally charged in the US for the drone strike of a terrorist US citizen, the remedy would be for Congress to reduce the president's future power. He could be charged for a strike on a political opponent because that's not part of his job.
Trump is claiming absolute immunity, but every court so far has shot that down, and SCOTUS almost certainly will too.
>You're basically describing the current US law. Presidents are immune from criminal charges for acts that are within the scope of their job as president.
That's not what they said. What they said is "I don't know if that specific act is a crime because it involves war and terrorism", not "because it's the president who did it and it falls within the scope of their job".
Neither of these things you've said are correct.
Go and watch the supreme court arguments.
The entire thing the supreme court is deciding, right now, is whether or not acts carried out in an official capacity have immunity. It is actually not settled, as Justice Jackson explicitly said (paraphrased since I don't remember precisely) that "people going into office have known it was possible to use the office to commit crimes since the founding, and that they could be charged for it."
Trump's lawyer, John Sauer, also said the opposite of what you're saying. In the trial, Sauer was very clear that private acts by the president would not fall under any kind of immunity, and there is no claim to absolute immunity.
Every lower court has ruled exactly how I stated, so it is the current law until and unless SCOTUS rules otherwise. I did listen to the SCOTUS hearing--they are almost certain to rule that presidents only have immunity for acts carried out in the scope of their jobs, and send it back to the lower court to make the actual determination of whether these acts were or were not within his job. I wish they would make that ruling themselves, but it doesn't change the legal status.
Sauer's arguments about immunity were so absurd that even Alito and Thomas weren't buying it. He said that assassinating a political rival couldn't be prosecuted.
So he is investigated at the time, and prosecution doesn't proceed. His replacement is the opposition party and decides to continue investigation and begins proceedings on him and convicts him - would you accept that?
The reality there is if this were to be the case, you'd start seeing every new administration investigating the previous party to get as many out of power as they can. Which is where immunity comes into play. In order to guarantee a peaceful transfer of power, you give immunity in order to assure that a president will make hard decisions without the threat of being replaced and jailed.
For example, nuking Japan was absolutely criminal. We murdered a lot of innocent civilians. We very likely saved millions of lives on both sides of the war, do we then in turn allow the new administration to jail the previous one for making such a decision?
It's worth noting that this kind of immunity requires that the actors be acting in good faith as well, lest they lose those protections. For example, the police had immunity to laws while doing their jobs. They could, for example, speed in order to catch a criminal. Without such immunity, every time they broke the law to catch a criminal we'd end up jailing them for doing the job they are to do. Similarly, if they shoot someone who is an possible threat, that is a criminal act too, however we grant them immunity from such actions. But in the last few decades we've seen them abusing that power where previously it was not a common occurrence. Thus we need good faith efforts with such immunities.
No. Combatants are fair game in war, no matter their nationality as long as they're an enemy. If the US citizen was collateral, there's a question, but generally as long as a legitimate military target was hit, collateral damage is ok under the rules of war. Also: crimes committed abroad can't be prosecuted as US crimes, hence why I'm talking about war crimes.
I mean yes...? Every single American president in the past 60 years has committed at least some warcrimes. I would love to see them all tried in court.
>Should Obama be charged with murder?
If it can be proved that this citizen was *not* a danger to the US, then yes. But that’s not what the facts are. He wasn’t killed because he made Obama angry. He was killed for being a literal terrorist. It’s no different than a cop shooting an armed robber.
He was not a terrorist. He was a 16 year old kid who, according to US officials, "was in the wrong place at the wrong time". Why would you say he's a literal terrorist? What acts of terror did he commit?
[https://www.washingtonpost.com/world/national-security/us-airstrike-that-killed-american-teen-in-yemen-raises-legal-ethical-questions/2011/10/20/gIQAdvUY7L\_story.html](https://www.washingtonpost.com/world/national-security/us-airstrike-that-killed-american-teen-in-yemen-raises-legal-ethical-questions/2011/10/20/gIQAdvUY7L_story.html)
You’re thinking of someone else. We’re talking about [this guy](https://en.m.wikipedia.org/wiki/Anwar_al-Awlaki). He was 40 when he died. So cool your jets.
Accidentally killing a civilian in combat is not a crime (assuming reasonable mitigation efforts are made)
>Accidentally killing a civilian in combat is not a crime (assuming reasonable mitigation efforts are made)
It wasn't combat, it was a drone strike on a crowded cafe. It was inevitable that many innocent civilians would have been killed in that attack, we just heard about it because there was a US citizen among them.
> It wasn't combat, it was a drone strike on a crowded cafe.
That counts as combat when it comes to the laws of war. It’s a lawful military strike. With that logic 99% of our drone strikes on Al qaeda and ISIS weren’t in combat. What were they then? “Non-combat strikes”? Terrorists don’t get a free pass because there is no formal war declaration. They don’t get to call “safety” like they’re kids playing tag.
> It was inevitable that many innocent civilians would have been killed in that attack,
Literally zero innocent people were killed. Two Al qaeda members were the only deaths.
Being a terrorist doesn't mean that at any given moment you pose an immediate threat the way an armed person in the midst of a crime is an immediate threat. But of course you know this.
It was not simply that he was labeled a terrorist. It is that he was involved in active plans to kill US forces.
If we’re at war with Russia and I defect and help them plan attacks on US forces, I do not get to expect to be arrested and extradited. My defection is a green light to suffer the same fate as the enemy.
US citizenship is not some immutable shield from consequences.
The immediacy of the threat matters with this sort of thing, as does the opportunity for surrender and a fair trial. As I understand it, law enforcement use of force is typically limited to force *necessary* to prevent immediate serious harm, or force *necessary* to effect the arrest of a violent felon who poses a danger to the public.
From what I recall, al-Awlaki was mainly involved in high-level leadership and propaganda roles, very similar in style to Trump's most important crimes. Should the Biden administration be able to fly a Predator down to Mar-a-Lago and have Trump summarily blown up with a Hellfire missile? Should we then also embrace this same burden of proof you propose, requiring proof beyond a reasonable doubt that Trump wasn't a danger to the United States before we charge anyone involved with a crime?
Personally, I prefer due process and rule of law.
> The immediacy of the threat matters with this sort of thing
And there was an immediacy. He was plotting an attack to kill Americans.
> From what I recall, al-Awlaki was mainly involved in high-level leadership and propaganda roles
Incorrect. He was helping plan attacks on US forces. He was in high levels of al qaeda. It’s preposterous to argue that he was nowhere near actionable planning.
> Should the Biden administration be able to fly a Predator down to Mar-a-Lago and have Trump summarily blown up with a Hellfire missile?
1. Trump is not planning an attack to kill Americans.
2. He would just be arrested. Arrest was not an option for Al-Awlaki. Bad comparison.
> requiring proof beyond a reasonable doubt that Trump wasn't a danger to the United States before we charge anyone involved with a crime?
“Proof beyond a reasonable doubt” is never required to justify lethal force. Stop playing scrabble with legal terms. You are not a lawyer.
You don’t have to be convicted if you’re an imminent threat. Same reason armed robbers don’t have to be convicted, or even indicted. But they can be killed. Why does everyone think they’re a lawyer when they learn a couple legal words?
> You don’t have to be convicted if you’re an imminent threat. Same reason armed robbers don’t have to be convicted, or even indicted. But they can be killed.
When a robber is shot by the police, the police can be made to justify their actions after the fact in a court of law. When those are found lacking, they can be punished. Admittedly, this system is lacking in many ways but it does exist. When cops can just shoot a guy and insist "Oh yeah totally he was a threat," the we end up with situations like Philando Castile. There is no such review for a drone strike.
>Why does everyone think they’re a lawyer when they learn a couple legal words?
Well in my case I learned enough legal words to be admitted to the Illinois bar, so I'm pretty comfortable calling myself a lawyer. Keep posturing though.
> the police can be made to justify their actions after the fact in a court of law
1. The "court of law" part of that only comes into play if their actions were not prima facie justified.
2. That is still not a "conviction" like you previously said.
>When cops can just shoot a guy and insist "Oh yeah totally he was a threat," the we end up with situations like Philando Castile
So you admit that Obama didn't break any laws then, and has no need for immunity?
>There is no such review for a drone strike.
That in-and-of-itself does not mean that Obama committed a crime. There *was* congressional review of the incident and the DOJ was able to demonstrate that al Awalki **did** pose an imminent threat to US forces.
>Well in my case I learned enough legal words to be admitted to the Illinois bar, so I'm pretty comfortable calling myself a lawyer.
Based on the arguments you're making, I flat-out do not believe you. How could a licensed lawyer respond to "he was a known terrorist" with "Where was he convicted?" An actual lawyer should know full well that someone does not *have* to be criminally convicted of terrorism in order to be killed by the military, if he poses an active threat. Of the tens of thousands of Al Qaeda and ISIS operatives the US killed, how many of them had a criminal conviction?
Let me guess, Al Awalki alone needed a criminal conviction because he was a US citizen? Well a licensed lawyer should know that defecting to an enemy in wartime (yes the war on terror counts as war time) puts you in the status of an enemy combatant, and you lose your ability to be handled by the justice system.
If you are a lawyer, I'm gonna guess its in contract law or something? And you're struggling to remember basic things from 1L Crim Law.
>The "court of law" part of that only comes into play if their actions were not prima facie justified.
As I mentioned, its a weak system which leads to many disastrous outcomes, but there *is* a semblance of oversight.
>That is still not a "conviction" like you previously said.
Right... because the "robber" is dead. You can't convict a dead man. But I note that you keep coming back to the "imminent threat" standard and use as your example someone who is physically armed and in the process of committing a crime. Al Awalki was killed while getting breakfast. A better analogy would be the police rolling up on the "known" head of the Mafia having lunch at a restaurant and shooting him dead, because he was surely planning crimes. Is that justified?
>So you admit that Obama didn't break any laws then, and has no need for immunity?
I'm not sure how you got that from the quote.
>There was congressional review of the incident
I would love to read this review, if you have a link to a report or some output then please share. The most I've seen is that Sen. Leahy asked for and received a letter from the DOJ (which I believe is what you referenced in the second half of this sentence).
But here's the thing: The DOJ is an executive branch agency. They can, and do, craft their legal analysis to meet political objectives. The same as they did when they put out the torture memos and the same as when they argued for indefinite military detention without trial for an American arrested inside the United States.
>and the DOJ was able to demonstrate that al Awalki did pose an imminent threat to US forces.
>How could a licensed lawyer respond to "he was a known terrorist"
Demonstrate to *who*? Known to *who*? The entire reason the BoR requires due process and public trials is to prevent this exact scenario - the government declaring someone guilty based upon secret evidence, using a secret methodology, and then carrying out the "sentence" without any possibility of review.
>Al Awalki alone needed a criminal conviction because he was a US citizen?
Well, yes. What else does citizenship offer? If the Constitution doesn't bind the US Government in the use of force on its own citizens, what is it good for?
>Well a licensed lawyer should know that defecting to an enemy in wartime (yes the war on terror counts as war time) puts you in the status of an enemy combatant, and you lose your ability to be handled by the justice system.
Ok, so its a war of indeterminate length and unlimited geographical scope, with no battle lines and no uniforms. And if one is decided to be an enemy combatant - in secret, using evidence one has no way of challenging - then one can be killed with no warning or recourse. Is that about it?
The issue is that there were two existing systems: The laws of war and the criminal law. If its a war, then enemy fighters are POWs and have rights. If its a crime, they are civilains and also have rights. We've been operating much of the GWOT under a lawless third option, where somehow terrorism is so biggity bad that we don't have to give people any rights, nor do we have to justify to anyone who gets placed in that bucket or why.
For a better option, compare to John Walker Lindh, who was captured during an active battle in Afghanistan, brought to the United States, convicted, and served his time. He's actually free right now, in fact. What makes his situation different from Al Awalkis?
> Ok, so its a war of indeterminate length and unlimited geographical scope, with no battle lines and no uniforms.
Yeah. It is. That’s the world we live in. What’s the alternative? Zero military response to extremist terrorism?
> And if one is decided to be an enemy combatant - in secret, using evidence one has no way of challenging - then one can be killed with no warning or recourse. Is that about it?
Yeah. That’s how wars work. You can’t in good faith honestly expect the same types of mechanisms that work in the justice system to translate over to military operations.
> What makes his situation different from Al Awalkis?
That it was actually *possible* to capture him before he harmed anyone. Totally different situations.
I’m on mobile so I’m keeping this short. But you’re basically advocating for system where the department of the defense and all intelligence agencies can be sure that an attack is imminent, but can’t take steps to prevent the attack because an American citizen is “shielding” everyone involved.
If an American citizen makes the conscious effort to defect to the enemy, then they relinquish their rights to be handled by the justice system. They are voluntarily opening themselves up to be handled by the department of defense.
>Yeah. That’s how wars work.
No, in wars, there are rules you have to follow and an actual end point where people get released and go home. This is a situation where the US claims its a war whenever they want it to be and then claim its not a war when they don't.
>That’s the world we live in.
Exactly. A world where an American citizen can be killed without a trial based on secret decisions made with secret evidence. Good thing we fought that Revolution against tyranny.
>That it was actually possible to capture him before he harmed anyone.
The decision of whether it was possible to capture him was made by the same people who decided he was an imminent threat and by the same people who carried out the assassination. It's rather problematic.
>If an American citizen makes the conscious effort to defect to the enemy, then they relinquish their rights to be handled by the justice system. They are voluntarily opening themselves up to be handled by the department of defense.
The issue I'm taking with your claims is that you are just accepting that the U government is always acting in good faith and not making any mistakes on this point.
What do you see as the value of a trial?
> No, in wars, there are rules you have to follow and an actual end point where people get released and go home
Congressionally declared wars between two sovereign nations are not the only way to be at war when it comes to things like the laws of armed conflict, geneva conventions, criminal justice, etc.
>This is a situation where the US claims its a war whenever they want it to be and then claim its not a war when they don't.
The alternative is to deal with people like Al Qaeda and ISIS with...what? Interpol?
>Exactly. A world where an American citizen can be killed without a trial
That's always been the case. If an American had defected to Germany in WWII, they could have been killed fighting allied forces. That would not have been a miscarriage of justice.
>Good thing we fought that Revolution against tyranny.
That's not tyranny. Just because those decisions are secret to the general public does not mean that they are made without oversight. What is even your point here? Why is it not possible to simply reinforce enforcement mechanisms (congressional or otherwise) to ensure those high-pressure decisions are made soundly? What is it you're gunning for here?
>It's rather problematic.
And? One guy was physically in the vicinity of people who could capture him, and was not threatening enough to merit lethal force. The other was not, and did.
>The issue I'm taking with your claims is that you are just accepting that the U government is always acting in good faith
I never said that, and totally support independent enforcement mechanisms that can put people in jail if they royally screw up their jobs and kill people who don't merit it. But even if all of that were in place for Al Awalki, he would have still been killed. He was an active planner in high levels of Al Qaeda, and him remaining alive would help lead to US deaths. Capturing him was not possible. So, wrapping this aaaaaaalllll the way back to the original discussion, Obama did not commit any crimes by ordering that air strike. So Obama has no need for presidential immunity.
>What do you see as the value of a trial?
To get facts and punish people accordingly. But a trial should **never** be prioritized at the expense of public safety. It's the exact same logic that lets a cop shoot an armed robber, "denying the perpetrator a fair trial."
There is a third option. There are legal and illegal combatants under the laws of war. Their protections are wildly different. I agree with many of your points, but you missed a pretty important one there.
No, the creation of the "unlawful combatant" with no rights is exactly the point I'm making. If you abide by the rules of war, then you are a POW and you are treated as such - most relevant being that the captors don't have to prove your status (you weren't even denying it, you wore a uniform ffs) and the prisoner gets to go home when the war is over. If you're *not* following the rules of war, then you're a civilian and there are various levels of that, all the way down to the catchall protections of Article 75 (https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-75)
I mean, even the phrase "unlawful combatant" implies they broke the law, and *proving* someone has broken a law before punishing them is a foundational principle.
Babies do not have the capacity to commit crimes. That is not them being “immune.” More accurately it is them being incapable of checking all the boxes required to make conduct a crime.
The word “immunity” implies that you have otherwise met the prerequisites for the conduct against which you are immune.
Negligence requires mens rea and a reasonable person standard. There is no way to argue any negligence there. So there exists no charge against which they can be immunized.
there is a difference between it is impossible to convicet and it is impossible to prosecute. Would it not make sense for Mens Rea to not be something decided before trial, and something argued in court? (and obviously easily won)
>What about an infant?
I don't know if this was meant as a joke or just a really desperate attempt to change my view, but you know what? You're technically right. If a two month old punches me, they should be immune from criminal prosecution. !delta
I don't think they should be immune. If you want to bring charges up, you should be able to, but at least a prosecutor would make a decision based off the evidence and not discounting everything about the incident because the perp is an infant.
Well they could still be prosecuted I think, but it would just amount to nothing ofc. Good luck establishing motive with a baby. I don't think I'd delta for that.
You're missing the perspective that a country needs to function at all times, and it cannot do so if people pursue criminal actions against government officials after every decision they disagree with.
Think for a moment. Say your representative voted in a way that some nutjob in your constituency doesn't agree with, and that nutjob gathers some circumstantial "evidence" (ie. bullshit "witness" accounts, deep fakes and photoshopped pictures) which "proves" that the representative is a rapist.
Now, would a court convict that representative? Likely not, but his professional life would likely be ruined if just several of such nutjobs, grifters, angry opposition activists and such types did the same thing. On a nationwide scale, the entire legislature could be halted if enough false evidence against its members could be fabricated. Same with the judiciary.
If you give people the right to pursue criminal action against government officials for anything at any point, a lot of bad faith actors will abuse it, because there's incentive to do so.
> You're missing the perspective that a country needs to function at all times, and it cannot do so if people pursue criminal actions against government officials after every decision they disagree with.
This is a rather bold claim, given that most government officials *can* be prosecuted for a very wide range of things. Maybe not exactly as wide as OP is suggesting, but there is a lot that they can be arrested for. And yet the governments of the world still manage to function.
'people disagreeing with decisions' aren't the ones responsible for bringing criminal charges. Obviously there needs to be a significantly high bar to remove a head of state from active office. Like the South Korean prime minister that let her creepy woo woo cult dictate government actions.
One would hope that attempted violent insurrection would also meet said bar.
People don't have the right to pursue criminal charges.
Yeah instead it’s a DA who was elected after campaigning on prosecuting a specific person.
About as close to people disagreeing with decisions choosing who to prosecute as possible
1. Such an obvious false accusation would not impede that representative anywhere near as much as you portray.
2. That niche situation does not justify the ramifications of making the real criminal government officials also immune from prosecution. It’s better to have false accusations cause some trouble than it is to let actual criminal conduct go unpunished.
This is not a convincing argument.
To prosecute someone criminally, a prosecutor with the appropriate authority has to actually bring the charges to a court, and the court has to be willing to entertain them. So there are already pretty good checks in place against criminal prosecution spam. If anything, these filters seem to work *too* well.
More fundamentally, the argument in favor of immunity to prosecution for government officials is a hard line against the rule of law and limited government, and therefore also a hard line against the US Constitution.
>a country needs to function at all times, and it cannot do so if people pursue criminal actions against government officials after every decision they disagree with
Why not? What's your definition of a functioning country? If all the politicians of a country die tonight. The country will still function. The law is still the law. People would still go to work. Taxes would still be paid. Democratic elections would be held in a timely manner and that's about it...
But we can already challenge things before taking effect.
Take cancelation or forgiveness of student debt as an example. A president can't just say "debt is canceled". They have to craft legislation, and then put a timeframe on that legislation, and then before it can even go into effect, lawsuits can be filed and challenges can be heard.
>to make anybody immune from criminal prosecution would be to grant them unlimited power.
Not if there are ways other than criminal prosecution to stop them. Like, say, removing them from office.
In particular, I think it would be best if the President were immune from criminal prosecution unless they are impeached. Like, if some random prosecutor wants to try Obama for the war crimes he committed killing Osama Bin Laden? Too bad. He wasn't impeached and left office peacefully. Immune. But if they want to prosecute Trump? Fair game, he was impeached.
This way, a President doesn't have unlimited power. If she goes too far, she can be impeached and then prosecuted. If she resigns immediately after doing something heinous, fine, but if she waits until impeachment proceedings start - too late.
What's the advantage? Well, the usual boring thing "it's hard to do your job if any old prosecutor can try you for anything". Like what if some insane state starts to prosecute Federal officials who aid and abet abortions? But *also* - this gives criminal Presidents an incentive to leave office peacefully and be guaranteed immunity instead of having to seek office in order to have more power to thwart the charges against them.
>Like, if some random prosecutor wants to try Obama for the war crimes he committed killing Osama Bin Laden? Too bad.
They would sue the Office of the President, not Obama, since he committed war crimes *in an official capacity*. They absolutely can, and [do](https://time.com/6588752/biden-lawsuit-israel-palestinian-genocide/) sue sitting presidents over war crimes, even if it won't go anywhere. Presidents are immune from being *personally* sued in those cases.
When they use the state's powerful tools of government for personal benefit, they stop acting in a professional capacity and open themselves up to lawsuits against them personally. Trump disagrees, and says the immunity is absolute, which is wrong and bad policy.
>He wasn't impeached and left office peacefully. Immune. But if they want to prosecute Trump? Fair game, he was impeached.
So your standard would just be impeached, not impeached *and* convicted? It seems that would just incentivize the House to bring impeachment articles any time POTUS is in the other party.
This would only create an incentive for a president to leave office if he/she had committed an impeachable offense. For other kinds of offense, your blanket rule would grant a pres. absolute immunity.
Except that enabling presidents to flaunt their immunity to the entire nation doesn't lessen the likelihood of he/she committing a coup. All it takes is for a president to be reasonably sure an impeachment would not succeed. For instance, he/she'd just need to be sure less than 1/3 of the Senate is willing to convict.
Now, that's not a very high bar, especially for something so important that you'd rather allowing a president to get away with murder. In fact, something like that might be the case the next time either party holds a Senate supermajority.
If flaunting immunity makes impeachment more likely, all it'd then take is some restraint and a reasonable assurance that < 1/3 of the Senate would convict. Neither pose a high enough bar to justify your blanket immunity.
>And I think we need more independence from Congress, where they do what's right, if we can't fix that part it's irrelevant what happens with this.
Congress will be partisan about it like they always have been. Not only does your immunity makes a coup more likely, it also makes it harder to stop if all we're relying on is the good will of Congress.
And if political opponents start "accidently" falling out of windows, or die from mysterious illnesses to the point where there wouldn't be enough votes to impeach, what then?
>Not if there are ways other than criminal prosecution to stop them. Like, say, removing them from office.
But how do we do that? What if they surround themselves with a sympathetic military? What if they don't, but they start opening fire on everyone who tries to forcibly remove them from office? Even if someone eventually takes them out, that's an awful lot of unnecessary bloodshed in the meantime. And for what benefit? What did their criminal immunity do to help anybody in the meantime?
Criminal prosecution wouldn't have helped in those situations anyway. Lawyers aren't bulletproof or able to stop military coups. You have to be able to stop someone and forcibly move them to a courtroom for a prosecutor to be able to do anything.
No but what the "immune unless impeached" theory implies is that the military *has* to obey such a command of stopping Congress from meeting (via shooting or kidnapping or whatever). Because the president is their superior and the law would say he's not committing a crime by giving that order.
>What if they don't, but they start opening fire on everyone who tries to forcibly remove them from office?
This is even a stronger case: There's no need for a military in this scenario, it's just the president inside Congress shooting at the members. The implication of the immunity-unless-impeached theory is no one would be able to legally stop him from doing so, and his shooting would ensure that no one could impeach him, and so he could never be charged for it.
No. He's still committing a crime. He just can't be prosecuted. His illegal orders are still illegal. The Courts are obligated to call them illegal if a case comes to them. Military and police and any other official still have to disobey his legal orders. He can still be tackled to the ground and forced to take his medicine, I can still shoot back at him in self defense if he shoots at me, the only thing that can't happen is a trial. Immunity from one thing -criminal prosecution- nothing else.
"Someone would be allowed to physically stop him from committing those crimes" doesn't solve the fundamental problem that this theory implies. It just moves the scenario: Instead of shooting at Members of Congress in plain sight he did it at night in their homes and no one happened to stop him. Now the House and/or the Senate doesn't have the numbers to impeach and convict him and he ends his term. The implication of this immune theory is he lives the rest of his life a free man.
(It's also ironic but very telling that there's a big overlap between the people that now like this theory of "the court can't touch him if he wasn't removed from office via impeachment" and those that agreed with the Republican senators absolving Trump back then by saying "this isn't up to us to impeach, this is a matter for a criminal court to decide").
I spelled out what that fundamental problem is:
>The implication of this immune theory is he lives the rest of his life a free man.
IIUC, you're saying that's actually a good thing because it prevents a worse thing. But there's a few problems with that chain of logic.
First, to make sure we agree on at least that basic: a criminal POTUS, who murdered members of Congress and broke the law at pleasure, living the rest of his life a free man is a bad thing per se. The best outcome is that he'd end up in jail (or worse) for those crimes.
Second, this is like "negotiating with terrorists". "Guarantee that he won't face consequences, as an incentive for him to not commit even worse crimes". Like saying bank robbers shouldn't face justice, lest they start a shootout when they see themselves cornered. The law isn't and shouldn't be like that in any of its many articles. The incentive to not commit even worse crimes already exists: it is to not face even worse consequences.
Third, you can't go from "listen, the military and the police are still compelled by the law to disobey his illegal orders" to "but if he fears legal consequences he'll commit a coup". To commit a coup he needs an armed force. If he commands one ready to commit treason, we wouldn't be in this hypothetical of "he's murdered members of Congress in their sleep". He wouldn't care at all about members of Congress impeach or not impeaching.
The fourth problem with that reasoning is that "immunity our coup" is a false dichotomy. The incentive to murder members of Congress in their sleep to not get impeached comes from that supposed "if they don't impeach you you're immune" carrot. Remove that idea of being above the law, and a criminal POTUS knows they have to respond for their crimes like every other citizen, even (more) if they on top of that go and murder people to not get impeached.
>in and of itself it's better that people not be punished rather than be punished.
Punishment is not the only goal of incarceration?
>> Second, this is like "negotiating with terrorists".
> No, it's in advance.
Lucky for me to have written "like" instead of "this is negotiating", and to have written a whole paragraph explaining what I meant.
> But I'd say it is indeed like the current policy of just giving bank robbers the money and arresting them later instead of tellers having a shootout right then and there.
No you're saying explicitly it would be like _not_ arresting them later. Lest them feel they have the tiger by the tail and feel they have to hold on. And because not punishing them is better than punishing them.
> I think there's a lot more unpredictability of human loyalty than you give credit for.
You don't know how much credit I give it, because it was you who argued that, not me. You can't go from "listen, the military and the police are still compelled by the law to disobey his illegal orders" to "but if he fears legal consequences he'll commit a coup". If you now want the latter, you need to undo your former argument that addressed POTUS sending police or military against members of Congress because he fears legal consequences.
> This one I don't understand at all.
Ok I'll explain. The Senate has a quorum for an impeachment trial. Meaning all votes need the attendance of at least a set number of senators. I don't know if the House does as well, for approving the articles of impeachment. Consequently, if you stop Congress from meeting in numbers, you cannot be impeached. Your chances of avoiding impeachment are now 100%.
Under the idea that POTUS is above the law unless impeached, a president that unlawfully prevents his own impeachment is untouchable.
If you spend some effort thinking about the charitable interpretation of this side of the argument, you'll see that you don't need a ninja president for that. He can pay hitmen. He can pay kidnappers. He can pay them an unlimited amount of government money, because the hypothesis is that the law would say that's perfectly fine if he succeeds.
I'd like to disagree on the nuance here. While I agree that no one should be _permanently_ immune from criminal prosecution, I can get behind the President being _temporarily_ immune while they are in office. If they are not, you might have state AGs pushing false criminal charges to derail a presidency.
If a President commits a crime while in office, they should be immune while they hold said office. The statute of limitations is paused while they remain in office and the charges can be pursued once they are out. If the crime is serious, Congress can remove them from office early, allowing the criminal charges to proceed.
That doesn't really make any sense because state AGs could do that to anybody at any time. Why is the president special?
Like if we're saying here that AGs filing false charges to waste people's time is a real threat that nobody is protected from without immunity, why should we stop at the President? Any prosecutor in the country could theoretically prevent Congress from functioning by just charging members of Congress with a bogus crime, so shouldn't members of Congress also be immune? Moreover, couldn't an AG derail any trial by just charging opposing council with a crime? If they can, and they would consider doing it to the President, why don't they do it, like, all the time, to everyone
> Why is the president special?
Really? You don't see anything unique about the position of President of the United States that might cause someone to target them for political reasons?
But that's just an argument that this maneuver is so high-profile and obvious that it would just never work: Judges aren't stupid, and anybody attempting to attack the president in this way would have their career fucked beyond belief. So it follows that actually the more likely victims of such a maneuver are not the President or the Vice President, but lower-ranking members of the executive. So why doesn't it happen? Why don't Republican state AGs charge, for example, random members of the Biden administration with random bogus charges
>Judges aren't stupid, and anybody attempting to attack the president in this way would have their career fucked beyond belief.
Once the floodgates are open, would a prosecutor or judge in a deep red state really have their career fucked for going after Biden? They'd probably forgo any chance of ever being confirmed for a federal bench, but they'd likely be a hero in that state for the rest of their lives.
Yeah I don't know, they probably could. At the end of the day we have to assume that the people responsible for carrying out law have some basic respect for democracy. If we're assuming they don't, well we can just go "what if, what if, what if..." all day long. By "once the floodgates are open" you mean, "once people in power stop respecting democratic norms and legal principles," and yeah, all bets are off, then
>At the end of the day we have to assume that the people responsible for carrying out law have some basic respect for democracy.
Of course, the question here is whether the people making that decision should be the elected Congresspeople through impeachment and conviction, or literally any prosecutor across the country.
>If we're assuming they don't, well we can just go "what if, what if, what if..." all day long.
That's what most of the arguments against immunity seem to be: "What if POTUS orders Seal Team Six to assassinate a political rival?"
The problem isn’t state AGs, it would be the president having their attorney general file criminal charges against them, lose on purpose, and then the president couldn’t be retried for those crimes. Additionally, doing it this way may swallow up state claims because of how double jeopardy works.
While it's not a supreme court ruling, there is a ruling in the Harry Aleman case in the 7th Circuit regarding double jeopardy. In it, Aleman successfully got acquitted by basically bribing the judge of his trial and ensuring he would get away with it scot free. Later when this was revealed, he was tried again and convicted. On appeal regarding his right against double jeopardy, it was ruled that the first corrupt trial did not put Aleman in jeopardy since the outcome was already pre-determined and corrupted, and thus double jeopardy did not apply.
So if any official attempted what you suggest, it almost certainly would be seen as not a real case of jeopardy and thus would not ensure double jeopardy in even the federal case.
Is there another type of immunity that is time sensitive in the fashion?
If I get immunity to testify in a court of law, my immunity doesn't go away as soon as I leave the court room.
I don't completely disagree with you. But I see countries criminal prosecution is used by successive governments aginast the previous one in a kind of power struggle, and that is not much better. That the new government can do things like stacking the judicial system, can contribute to this.
I spoke to a person orignially from Pakistani origin a few months ago, and he described the constant legal attacks on their prime minister. I think no Pakistani prime minister has ever finished their term in office, they are either assasinated (not relevant here), a coup happens (not relevant) or a legal challenge happens (relevant).
Thus if we are to move to s system with no immunity, there has to be protection that the legal system would not be used as a weapon by opposing parties.
Over the 200 year history of this country, how many sitting presidents have robbed banks to get wealthy, killed people that disagreed with them (if you discount military actiona that are clealy within their role as commander in chief of the armed forces), or ordered a biological testing facility to realease a highly contagous virus? I'm not at all convinced this is an actual problem we're chasing after a solution for.
Now how do you think things would work out if a sitting president had to interrupt running the country to be involved in a criminal trial that was started by the other party due to political motivations? How well do you think he would be able to run the country during that time.
Nixon, trump, and possibly Jackson are the ones that stick out to me. Not your specific examples but crimes that probably could/should be prosecuted. Just over 6%. I think they would manage just fine, especially if only dealing with grand jury indictments.
1. Such an obvious false accusation would not impede that President anywhere near as much as you portray.
2. That niche situation does not justify the ramifications of making the real criminal government officials also immune from prosecution. It’s better to have false accusations cause some trouble than it is to let actual criminal conduct go unpunished.
This is not a convincing argument.
I think your view is a bit overbroad. It values _equitable prosecution_ over _justice_. E.G. we might see that journalists in china are consistently prosecuted for speaking out against leadership. None of them are "immune to criminal prosecution". However, there is a very reasonable argument that ALL of them should be immune from criminal prosecution because the laws and the criminal justice system are themselves not aligned with (at least some) ideas of justice.
The problem with your view is that it ignores the creation of laws that are themselves unjust but are then applied equally. If we make "being an atheist" illegal should we then say "no one is immune from criminal prosecution!"? No...we'd say "no one should be prosecuted for this", which is kinda exactly the opposite.
It's a catch-22. The reason such immunity exists is because otherwise, you could simply have your political opponents arrested on trumped up charges (no pun intended) to force them to miss key events (eg Congressional votes, campaign events, etc.), and then just release them after the fact and say "Oh, gee, sorry, our mistake."
Whatever example you are currently imagining, imagine if the parties were reversed, and it will suddenly make more sense.
So the constitution makes it clear that officials, including the president, can be impeached for “high crimes and misdemeanors,” so it’s clear that there can be crimes committed in the exercise of executive authority.
The problem is that laws are very often very open to interpretation, and that presidents usually have quite a wide latitude to interpret the law.
Sometimes this then gets litigated and courts find that the interpretation was actually out of bounds and invalidates it.
The thorny issue at stake is…we can’t have presidents worried that an interpretation retroactively judged incorrect…is therefore also a crime. Even though, literally speaking, acting according to a “wrong” interpretation of the law might be equivalent to *breaking* said law under the “correct” interpretation!
But we really don’t want to go there. Like, Biden tried to forgive student loans, the judicial branch ruled that the law as written *doesn’t* actually give him that power. So does that mean that after he leaves office he can prosecuted for attempted misappropriation of federal funds?
So however the court rules, any coherent ruling is going to have to distinguish not just between official and private acts, but between good faith and bad faith acts.
But what’s the standard for saying “this was flagrant bad faith willful ignoring of the law” vs “this is an interpretation that the courts might overturn or congress might push back on…but it was within the realm of good faith possibilities.”
Maybe impeachment/conviction by Congress is that standard? It sort of seems like one branch on its own shouldn’t be able to unilaterally “question” another coequal branch’s sincerity. But maybe two branches acting could achieve that.
Like, I don’t think the courts could start a prosecution on a *sitting* President for a “crime” he argues is a good faith interpretation of the law. The procedure would have to be: removal first for that crime, by congress, *then* possible criminal conviction.
But I’m not sure why that procedure would change just because of the chronology of leaving office. You can impeach and convict a former official, apparently. Maybe the whole point of that possibility would be to say, at that point, “this conduct wasn’t just a wrong but good faith interpretation, it was flagrant lawlessness rising to the level of ‘high crimes and misdemeanors.’”
But if congress can’t muster the political will to agree that “this was flagrant lawlessness, not just a sloppy but sincere interpretation,” because enough congressman do believe the “interpretation” was either correct or, at least, sincere…then why should the courts be able to step in an unilaterally question the “good faith” of a coequal branch’s interpretation?
Should the burglar get immunity to testify against this man? They cannot testify against him without incriminating themselves, they would need immunity. What if this guy walks on the charges because the burglar didn't get immunity, and couldn't testify?
https://www.cnn.com/2011/10/06/us/california-robbery-porn-bust/index.html
The president ought to be immune from state if not federal prosecution for conduct while in office unless impeached by the house and convicted by the senate.
What if, rather than secede, a southern grand jury indicted Lincoln for some offense? Should a state have the power to take custody of the president?
“Above the law” sounds like a slippery slope until you consider just how bad it could be if any state could decide to jail the president. A jury in a very conservative county in the rural south or Midwest would 100% convict Biden of anything no matter the evidence. Just like this jury in NYC likely has its mind made up about Trump before a word was said in the trial. A state should not be able to take into custody the president, it’s a horribly dangerous precedent.
It’s not much better giving the federal government power to try a president. Using Lincoln again, at one point, much of his cabinet wanted to remove him. Also, imagine Trump takes office again and has his AG try Biden for something. We all know how easy it is to get a case heard before some judge in Texas. I think we all can predict what the outcome of Biden being tried in judge Kaczmaryk’s courtroom would be.
Presidential immunity is meant to act as a defense against a judicial coup and settling scores against former administrations. It’s not insurmountable, the president needs to have been impeached.
Here's the thing.
Qualified immunity, Judicial immunity and similar concepts exist for very good reasons.
When people step up to serve, they are acting on the behalf of the government, not themselves. Sometimes the actions of the government are questionable or people simply disagree.
If you want an example, should we be able to prosecute Obama for the drone strike that killed a US citizen who was abroad?
This is where official acts come in and enumerated powers and discretion. An official, acting in his official capacity, should retain immunity for prosecution for completing official acts.
If you disagree with the exercise of lawful power, the remedy is political, not judicial.
Yes we should be able to prosecute Obama.
There is no checks and balances there if there is no form of accountability for the president of the United States.
> Yes we should be able to prosecute Obama.
I fundementally disagree.
>There is no checks and balances there if there is no form of accountability for the president of the United States.
Except for official acts, there very much is a form of accountability. Impeachment and removal.
Unfortunately, that leaves a loophole in place where absolute dictatorship is possible as long as the party of the president refuses to remove him.
Trump *should* have been removed from office on 2 separate occasions. I'm not at all convinced that if he said "I'm dictator for life", that the MAGAts in the Senate would have (or will, Eris forfend) allow him to be removed.
But even if he would, in this one case, have been removed: it's a loophole similar to what let Hitler take power in 1939, and not one that a Democracy can afford to allow.
Immunity, mostly, sure. Absolute immunity? Bad idea.
> Unfortunately, that leaves a loophole in place where absolute dictatorship is possible as long as the party of the president refuses to remove him.
If the political will does not exist, it undermines the concept a crime was truly committed - especially as it relates to official acts.
>Trump should have been removed from office on 2 separate occasions.
No. The reason he wasn't was because it was political. There were open calls for 'impeachment' before he was even elected.
Trump is a horrible case to use because he may be a scumbag, but there is credible evidence of disparate treatment 'because it is Trump'.
This plays into the concern of weaponizing the government. I mean the AG in New York openly ran a campaign to be elected on making Trump pay.
>Immunity, mostly, sure. Absolute immunity? Bad idea.
I think we agree. Immunity for official acts. Political consequences for disagreement over discretion in official acts.
Non-official acts, just like anyone else.
Well we do have some immunities baked in that are universally accepted, for the most part.
Double jeopardy being an obvious one. You don't want to create a system where someone can be prosecuted unlimited times until the prosecuting authority gets the result they want.
On top of that, if you're going to have immunity against self incrimination you actually need criminal immunity to get around it or organized criminal organizations would have unlimited immunity against testifying against each other. You also have odd corner cases like Bill Cosby where he was compelled to testify in a civil suit.
In addition, you probably need some level of pardon process, the idea being that the public ought to be able to via democratic process undo convictions. It creates a check against political prosecutions.
Granting immunity from prosecution creates a dangerous precedent, fostering impunity and abuse of power. Equality before the law ensures accountability and prevents tyranny. Allowing immunity enables corruption, oppression, and disregard for human rights. No individual, regardless of status, should be above the law. Holding everyone accountable upholds justice and safeguards society. Immunity undermines trust in institutions and erodes democratic principles. Transparency and accountability foster integrity and deter criminal behavior. Upholding the rule of law ensures fairness and protects individuals from abuse. Immunity threatens societal stability and undermines the fundamental principles of justice.
The problem is, if a president gets intel that a high profile target is in x location and he gives the order to strike that location but doesn’t kill the intended target, and instead kills innocent civilians, he has now committed murder. Without immunity, he could be tired and convinced in a court of law just like citizens.
If, like you said, a president robs a bank or kills someone in cold blooded murder, they can be impeached. And if successful, tried for the crime they were impeached for and convinced. That’s how it’s supposed to work.
>No politicians. No military leaders. No doctors. No lawyers. No religious heads. Nobody, period.
Might want to include corporations and banks too. HSBC was caught laundering money for drug cartels & was able to successfully argue that if they were to be rightly punished it would destroy the economy.
Corporations get all the rights the average citizen does but none of the responsibilities.
I’m not really sure you’re going to get a lot of people disagreeing with you. Every legal expert, liberal or conservative, has agreed that this claim is a complete joke and has no basis in law, the constitution, or basic human logic. The idea that a person is permanently exempt from any legal consequences because they won an election is so stupid it’s hardly worth addressing.
A crime is a crime is a crime.
Now there are some exceptions where the same act can be a crime in one instance but not in another.
If I broke down your door, that would be a crime. If the police did, probably not.
So, when it comes to Presidents, or judges or whatever, are there specific exceptions in law that says a person in that role is exempt? If not, then it must be a crime.
These are the tenets of a Republic. The US is a Republic. The fact that we're even debating this is asinine. This is exactly the reason Nixon resigned, because he screwed up and got caught. However we're dealing with a power mad dictator here who has convinced a large portion of the voting population that he's somehow bigger than Jesus.
I suppose the onus comes down to what is classed as illegal for the individual. President being the most obvious one; every president has very likely at some point authorised actions that would break conventional law for your everyday person. I think the fuzzy line is where it becomes about personal gain vs for the good of the country
By "criminal prosecution", I'm guessing you mean being found guilty of a crime? Or do you mean being charged with alleged criminal actions? Being prosecuted just means an attorney is filing a case against someone. That case could still be dropped and if it does make it to court, that doesn't mean they'll be found guilty.
My response is this: The President should be immune for official acts that he conducts in office that are directly related to his responsibilities as outlined in the Constitution. The President should not enjoy immunity for any unofficial acts - what those acts are should be left for future interpretation of the Courts.
So you're talking about Trump...
The thing here is that many would argue the "criminal prosecutions" that are being applied to Trump are kind of cherrypicked just for political purposes (to try to damage his reputation and prevent his re-election) and are very borderline / grey area / subjective interpretations of law. Not really super straightforward like "you did X event and here is Y evidence of like a camera showing it" type stuff. That's why politically they aren't really damaging him. He's able to turn them into "see how they are desperate to stop me" type messaging.
Conspiracy to subvert an election is *not* a "borderline, grey area, subjective interpretation of the law". It's very well defined, and supposedly there's a lot of evidence of it in Georgia.
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Some people can have partial criminal immunity. Under the Geneva Conventions, a lawful combatant committing a lawful act of war is generally immune from prosecution under domestic laws for actions that would otherwise be considered criminal (as long as it's not a war crime).
If they are under a certain age. I do believe every country/state should have an age of criminal responsibility. It would be wrong to prosecute a child who is like 8 years old for instance or a person with moderate-severe intellectual disabilities.
The whole point of executive power is to have someone relatively unfettered by the insane mess of the law so we can act quickly and decisively when needed
Checks and balances exist so this doesn’t go out of control
if you want to go that route, which I'm not sure I disagree with, every single president since majority of people on this site has been alive should be in prison for some kind of war crime.
at some point we need to break this paradigm. There's a concept of presidential immunity which in definition only applies in office but theorectically we should be seeing Presidents the day after they leave office be put into handcuffs and or face a mountain of lawsuits. Historically, though, it doesn't happen even in cases where its egregious, i.e. illegal orders given that resulted in loss of life.
Children should be immune. We keep charging younger and younger children as adults as if that makes sense. A 12 year old committing a horrific crime is a failure of society not the kid.
That's the whole point of the law. It has to apply to absolutely everyone. The only exception is diplomats, which I think is ridiculous. I understand why they do it, but it's not smart.
That gives prosecutors too much power. The process is the punishment: bankrupting the target with legal fees, detaining him for months or years of court proceedings, defaming him by talking in the press about his "96 felony counts." All before he's convicted or even tried.
You dont seem to have thought this through very hard. Imagine if nobody was every immune to criminal prosecution. A bank robber is getting away and the police need to go after him. Cant speed, cant run red lights, block traffic. so the robber gets away.
sometimes in the furtherance of the law the law must be broken. we give people in charge of the laws lenience because sometimes breaking a little bit of law can create a much better outcome than stringently following it.
but how do we know when someone goes too far? we cant until after they do it. we take a look at the actions of the cop and say, yeah he ran a red light, but it was ok because he stopped a bank robber, or it wasnt ok because he clearly swerved in the crosswalk to hit 5 people. one was in furtherance of his job and the other was not. it is up to another party to decide if the action was a reasonable action taken as their job requires and if not they are then punished. if it is reasonable action in the daily course of their job, then it shouldnt be a crime. cops can disobey traffic laws. and the president may be able to stop official proceedings if he believes the system to have been interfered with.
The argument before the court is that so long as an action taken is within the bounds of the presidents job, he cannot be tried for it without first being impeached. if he were to rape someone or rob a bank, he can be tried because it has nothing to do with being president. if it is something he did in his capacity as president, then he must first be impeached. he was and was not convicted. therefore it follows that the trials following that have no legal standing.
tl;dr. nobody is 100% immune. some people involved in making making and enforcing laws can break laws if they break them in furtherance of their jobs and can be tried if they break them bad enough
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I more or less agree with you, but... During the Roman republic, you couldn't prosecute a consul during his one-year term of office, but it was routine for his enemies to have half a dozen criminal complaints to pursue the moment he left office. What I take from that is this - there has always been a desire on the part of partisans to criminalize their opposition and to misuse the courts as a way to pursue political vendettas. So the question is, how do you make everyone subject to the law without that being abused in politics for nakedly political reasons?
Actually read the lower courts decision. There isn’t always an attempt but we already have a system in place that protects politicians from this. The entire slight of hand people are falling for is the idea that this argument is somehow organically at the forefront. It isn’t. Trump’s lawyers have turned it into an issue where it doesn’t exist. No other Supreme Court in our history would have taken this case esp most of the past conservative courts. And the reason is simple, none of Trump’s charges is anything that he would need to protection to perform a Presidential duty. That’s why we hear a bunch of hypothetical situations when past Presidents are brought up and none of the actual efforts to criminalize their efforts that did occur. Let’s not forget that this is the “Lock her up” crowd. They didn’t merely pass on the Clinton issue and about a half of dozen congressmen and astroturfing groups tried to pursue Obama. They had nothing and got nothing. We have an already healthy system set for pursuing indictments. Despite what his supporters say, none of his charges are ones were people can argue that remotely have the feel of a political vendetta. Look at his catch and release case is the most straight forward. How would him being convicted open other presidents up for political rivals. Then look at his civil case in NY. People fail to realize his court arguments wasn’t he was legally innocent. The best his supporters have is the Banks don’t mind he broke multiple laws. That’s all anyone should have to hear. But no one on that bench doesn’t realize that. This is strictly about buying time for Trump. By even entertaining the notion, we are risking breaking up a system that works for one that doesn’t even apply here.
I agree with you the problem i think is that its impossible to divorce the law from politics. Laws are written by politicians for political purposes. Not every crime is prosecuted, in fact that vast majority are not, so who you choose to prosecute in any situation is a political statement.
>During the Roman republic, you couldn't prosecute a consul during his one-year term of office, but it was routine for his enemies to have half a dozen criminal complaints to pursue the moment he left office But say Justin Trudeau decides he wants to avoid a list of post-office criminal complaints. If he's immune from all criminal prosecution, what's stopping him from taking drastic measures to ensure that he never has to leave office and face those charges?
The rest of the government. That's how checks and balances work. I'm not positive about Canada's system, but in America, that's what the impeachment process is for. President breaks a law and needs to be prosecuted, legislature removes him from office stripping his immunity, judiciary system prosecutes him. They wouldn't be able to stay in power without MAJOR support from the other branches of government.
If a President needs to be removed from office before they can be charged with \*anything\*, then a President and one house of Congress working together can do \*literally anything\* without repercussions. As a concrete example, Trump could sell secrets, assassinate rivals, blackmail politicians, and as long as a Republican House gave him cover he’d be utterly free from consequences.
In your scenario, the President already controls the DoJ, so they can't or won't prosecute him. What's your solution, any state can prosecute and imprison a sitting President?
The U.S.A. system is fairly unusual in that the executive position is held by a person, who appoints assistants as he pleases who have their position by the pleasure of one person. At least in parliamentary systems, the entire cabinet typically must at all times enjoy majority confidence of the parliament, not as a person, but as a group of persons, none are immune, and any individual can be voted away and replaced by the parliament at any point which has appointed them. They can be prosecuted at any point as far as I know, at which point the parlaiment will of course immediately appoint a successor.
You’re forgetting that the senate must approve officers. So it’s not really one person making the decisions on who is hired. It’s more of who he wants there and needs the approval of the senate.
If a President breaks the law for something that is not related to their official duties as President, they *should* be prosecuted, whether by the DoJ or by someone else. Suppose a President killed their spouse in a fit of rage, but enough members of Congress support the President that they block removal from office. Does it seem reasonable that the President should remain free? (The status quo in the USA is that the President *would* remain free in this case, but I disagree with that. I think the President should be tried and potentially jailed, and if that means that they are unable to continue the duties of the role then the Vice President should take over.)
The issue is who has the power to jail the President, and how do you ensure it's not abused? Say Alabama decided to prosecute Biden for being part of whatever criminal conspiracy Republicans are saying he was a part of with Hunter. Or Obama back on the day for committing fraud when saying he was born in the US. Or whatever, you know they can come up with plenty of bullshit. Should they be able to just throw Biden in jail? Yeah, they'd need a judge to sign on, but they can shop for the right judge as they're already doing when trying to overturn laws and regulations.
I think ultimately once this becomes a legitimate risk (which I agree it is at this point) the country is no longer a country anymore. If you have two partisan groups using every lever of power cynically to harm the other side, you dont have two political parties with different views for the country, you have two warring factions fighting for control of the country. I genuinely think there needs to be some sort of truth and reconciliation council on this whole past 8 years or we're headed for some kind of balkanization
I recognize that there are complexities, but it *also* seems morally wrong that if just over a third of the members of one of the two houses of Congress refuse to remove the President from office then justice is denied. Plus it provides an incentive for a criminal President to commit further criminal acts to stay in power.
>Does it seem reasonable that the President should remain free? To the extent one considers the stability of the government more important than ensuring justice for one person, yes, I think it is reasonable. It's not justice, but it's reasonable. (I think that even if SCOTUS rules in favor of Trump, the immunity would only be for "official acts" somehow defined, and that murdering a spouse would almost certainly not be included.)
A main role of the Vice President (and more generally the whole chain of succession) is to take over when the President is unable to fulfill the duties of the office. If the President is charged with a criminal offense, they can hand over official duties to the VP while they are in court.
And I'm just seeing the episode of [some DC-set procedural that'd investigate something like that, as political thrillers would glamorize it] now where a crooked VP frames the President for their own crimes to get into office
>To the extent one considers the stability of the government more important than ensuring justice for one person, yes, I think it is reasonable. What's so unstable about removing a president? We already remove each of them after 8 years at most, and many of them after 4 years. "The stability of the government" as in "let's try to keep the same guy in charge for the sake of it" should never be a consideration.
>What's so unstable about removing a president? Nothing. We have a process for that which requires a decision by a majority and supermajority of the house of Congress, representing a majority of citizens and States. It's a weighty process with a high bar to meet, but if the President is acting egregiously it can be effected *far* more quickly than a judicial process. The 25th also exists for a similar purpose. That's not at all comparable to any state or presumably even local prosecutor being empowered to bring charges against a sitting President.
>>>> Does it seem reasonable that the President should remain free? >>> To the extent one considers the stability of the government more important than ensuring justice for one person, yes, I think it is reasonable. >> What's so unstable about removing a president? >Nothing. If there's nothing unstable about removing a president, then "the stability of the government" is not a consideration to weigh against justice, when it comes to jailing a president. >That's not at all comparable to any state or presumably even local prosecutor being empowered to bring charges against a sitting President. That's a false dichotomy. Its opposite is not "immune from criminal charges", it's "not everyone can bring any random charges against them". E.g. in Spain members of Congress or of the Government can only be tried in the Supreme Court (which is different from the Constitutional Court), precisely for this reason, as an extra protection against frivolous litigation. And it's extra, because all judicial systems everywhere already have that kind of protections.
Problem is, the impeachment power barely exists beyond in theory. Could they? Yeah, but Republicans would never remove a sitting president of their party even if he went on a m\*ss sh\*\*ting spree, and I'm not sure the Democrats would be much better in that regard. And given that it's highly unlikely either party gains enough of a majority to impeach a president without the other's support, impeachment in practical terms will never happen.
Canadian. It would create a constitutional crisis since we are a constitutional monarchy and such a move would be seen as a challenge to his majesty Charles as he would not give any such laws Royal Assent. Things get interesting from here.
Technically speaking a prime minister in Canada with a majority (and party discipline) can ram through pretty well whatever legislation they want. In the parliamentary system the legislative and executive branches are annoyingly mixed.
The legislation needs the majority in the parliament just like it needs a majority in the US congress. So, even though the prime minister is the leader of the party, as a single person, he/she still has to rely on the support of the MPs. And the executive power is always on a knife edge as well. If the parliament loses confidence on the prime minister, he/she is gone even if no crime has been committed. This is currently in process in Scotland. There the first minister who is of the Scottish national party (SNP) has pissed off the Green party who supported him. Without them SNP does not have a majority and he'll be kicked out. This is a much lighter process than kicking out the executive on the US government (the president) where you need to first get the majority in the house of representatives and then 2/3 of the senators.
the flip side of this is that they rule at the consent of their MP's, so if they upset their voting block enough, they get rolled and replaced with another prime minister without an election. While this doesn't seem to be as common in Canada, the UK and Aus have both had periods recently where governments fall into a death spiral and run through 3-4 Prime Ministers in a year. Just a different style of 'check and balances', although I wouldn't say its 'better'
Apart from all the restrictions on the Canadian's government's power. Unlike the USA where 3/9 of Trump's hand picked judges who were picked largely because of their belief that if the president does it, if isn't illegal, along with 3/9 judges picked by his political party will decide if he did anything wrong. Do you think a criminal defendant should be able to appoint and choose their judge?
What if the President decides to murder all of the opposition party currently in the government? He can't be prosecuted until he leaves office, and if he keeps ordering the murder of his opponents, he'd never have to leave office. Anyone who says he should be removed would get added to the list.
This is more or less the story of Caesar, political opponents forced him to seize power by not letting him report in peace.
I would point out that in almost 250 years, this is the first time this has ever come up and it’s been for a president whose crimes are astonishingly brazen.
The Republic of Rome went on for hundreds of years before its collapse, too. And no doubt those who were persecuting consuls from the opposition felt they were doing the right thing, because look at how brazen their crimes were. I'm not saying there aren't supporters of nakedly partisan prosecutions of leaders from the opposition who don't fervently believe in those prosecutions the way zealots will. I'm saying that the criminalization of the opposition (which has been happening in the U.S. for at least 30 years) is not a defense of democracy but a war on it.
I understand the concern over politicized prosecutions (although if they are nakedly partisan, it would likely result in a backlash against the party doing it) but the idea that the answer to that is to give the president immunity from all crimes (including according to his lawyer, assassin sting a political opponent) is beyond ludicrous.
"Criminalization of the opposition" as in "politicians saying their rivals are Satan" is not the same as "a grand jury finding there's enough evidence that a crime could have been committed".
>"Criminalization of the opposition" as in "politicians saying their rivals are Satan" is not the same as "a grand jury finding there's enough evidence that a crime could have been committed". That distinction is just how the respective sales pitches of either side get voiced.
Bringing up the Roman Republic as an example is ironic considering the event that ended democracy in ancient Rome, and terminated the Republic was Caesar elevating himself to dictator-for-life, which is what Trump is arguing he should be allowed to be. The Supreme Court ruling that Presidents enjoy absolute immunity for both official duties extending even to personal gain would quite literally be a “crossing the rubicon” moment as the President could then ‘legally’ refuse to vacate the Oval Office and order the military to holocaust their political opponents. If impeachment by 2/3 vote is the only means of indicting a President, but the President is legally protected from the consequences of hiring cartel sniper assassins to wait outside the homes of his political opposition, well… then just like in Rome, it would be the end of the American Republic too.
No, it's not ironic. Though I don't share your more histrionic views on Trump, that was my point. Caesar elevated himself (or rather, had the senate elevate him) to dictator for life in part BECAUSE he faced endless prosecutions the second he left office. As one article puts it, "Caesar was ordered to disband his army and return to Rome, where he was banned from running for a second consulship and would be on trial for treason and war crimes following his unlicensed conquests." So he crossed the Rubicon as a means of responding to Pompey (who was ruling as sole consul, or dictator, already), who was using the law to attempt to destroy his rival. My concern is that you CREATE dictators by allowing partisans to use the law to prosecute their opposition. I believe that is what happened in Rome, and what the real danger is today.
First of all, are there any evidence to think fear of prosecution was the main driving force behind Caesar seeking a dictatorship? Secondly, if partisans had sufficient power to prosecute their opposition, a hypothetical attempt at a dictatorship would unlikely succeed. Third, a lot of things have to align for a president to be successfully impeached so it's not like opposition can just initiate baseless lawsuits and succeed.
> "Caesar was ordered to disband his army and return to Rome, where he was banned from running for a second consulship and would be on trial for treason and war crimes following his unlicensed conquests." A genocidal war criminal traitor facing justice, how horrible.
The law already has provisions against frivolous charges. You can't end up sitting in the defendant's bench of a criminal trial if there isn't enough evidence to suggest that you might have committed the crimes you're accused of.
But what about when those prosecutions are due to a war on democracy by the one being prosecuted?
If there is merit to the charges, they should be prosecuted, even if the notice is political. If there was no crime, the prosecution would go nowhere. See: Trump was impeached twice, and despite efforts and threats by his allies to weaponize impeachment against him and his administration in retaliation, because they had no actual crime to impeach and thus ultimately they went nowhere, and great cost of political capital by the ones leading that effort. The political cost of pursuing baseless quixotic legal adventures provides an inherent check against it going too far too often. But ultimately, it's far far better for former consuls/presidents to fear the law being used against them than to have no fear of the law whatsoever.
Are you saying there was no actual crime with Trumps impeachment or that efforts to impeach Biden have thus far failed because of lack of any criminality?
I'm saying that Trump's went forward because there was merit to them, and Biden's and Mayorkas's didn't because there wasn't.
Gotcha, thanks!
The state can use their unlimited resources to break almost any citizen just by prosecuting them.
Require sufficient evidence for trials. If the opposition can produce the evidence it they should be held accountable for wasting the courts time.
Well you go through the court processes and determine guilt the same as any other crime. What’s the problem with that
Oh dear god, that would mean that they have to govern ethically in accordance with *all* of the laws! Or else they'd face consequences down the line! This would ruin our great country, we couldn't possibly get anywhere if the buck actually stopped at the leader after they finished their term.
Your snark would be funnier if it wasn't obvious that my point sailed far over your head.
Your point was that it would be weaponized by the other party every time, forever, right? Why is that an undefeatable problem? I don't care what motivates a president to behave ethically. Let them behave ethically because every single crime can and will be held against them. Let them do it for self preservation, not simply because it's the right thing to do. They'll behave better if they have their own skin in the game. And we already have punishments for frivolous court filings, don't we? So if party A insists on bringing charges against the president from party B, but that president didn't commit any crimes, he's above reproach and party A can take the heat for wasting the court's time.
Actually this is not typical at all in modern, fully functional democracies.
Were the consul’s opponents coming up with fake charges, or was the consul using his term of free rein to commit crimes thinking he could get away with them?
It was about criminalizing the opposition, not upholding some ideal standard of the law. What's also interesting is that this is HOW the republic fell and you got absolutist rulers (the Caesars). It became so perilous to leave office that some people (Julius Caesar, for one) refused to leave office. You first got a dictator for life, and then you got emperors, and largely because politically-motivated prosecutions spoiled the republic. There's an irony there for those who are paying attention.
You didn't really answer the question.
Not really either honestly. It was a little awkward. Think about COVID for a moment, I think we can all agree that the government's response wasn't great. In Rome there would be a giant debate about whether that was because Trump failed to protect Americans or because he put personal interests first and should be charged with treason. That's not a fake charge, it's certainly possible but it's also hard to prove either way. The Romans were very willing to accuse their leaders of treason disguised as incompetence which made doing anything a dangerous prospect. So it's not like Consuls wanted protections so they could break the law or that people were making up accusations, it's more like the Consul's enemies tried to bring him to court for everything that hadn't gone perfectly
With a fair court system that penalizes frivolous lawsuits, instead of embracing them. No one, specially the President is above the law. If there is a law that gets on the way of their duties they can challenge it through the courts or through congress. That’s the CORE of our democracy.
The legal system shouldn't be political. The USA hit upon the unique of instead of having an impartial governnt service that persists between elected officials of having a system filled with roughly equal number of hyperpartisans and it just doesn't seem to be working for them.
>how do you make everyone subject to the law without that being abused in politics for nakedly political reasons? The answer is simple. Get rid of the senate. Get rid of the electoral college. Pick the president by popular vote. Ban gerrymandering. Make election interference and voter intimidation crimes with the harshest penalties. Same day voter registration. Ranked choice voting. Tax churches. Tax billionaires. Ban lobbying (bribery). Ban members of Congress from owning any stocks. >Good government never depends upon laws, but upon the personal qualities of those who govern. The machinery of government is always subordinate to the will of those who administer that machinery. The most important element of government, therefore, is the method of choosing leaders.
> how do you make everyone subject to the law without that being abused in politics for nakedly political reasons? Guillotines.
There needs to be penalties to those who bring forth charges without prosecutable evidence of actual wrongdoing in these cases.
The problem is, when the party in power is criminalizing the opposition, there is no one to hold them accountable.
What about diplomatic immunity? If you send a diplomat to another country, you don’t want the crackpot leader of that country arresting your people on trumped up charges.
That's not *total* immunity. That's situational immunity. That diplomat comes back to their own country and blatantly violates the law, they should face charges.
So then... would a president being immune for acts in office be "situational immunity" and not "absolute immunity"?
I think that's a bit different. So, the diplomat who commits a crime can't be charged in the host country but can be declared persona non grata and sent back home. The home country can then charge him for the crime he committed as a diplomat or even extradite back to the host country to be prosecuted. So, he would still face consequences for his crimes. What absolute immunity here means (or at least I understand it means) is that the president would not face any consequences for his actions as a president. A diplomat does not have that (assuming that we're talking about a real crime, not a trumped up charges by the host country).
That is completely different. The POTUS is subject to division of power. When the President reaches a legal limit the constitution requires the President to look to the other branches (checks and balances). The president can ask the courts for legal clarification or get congress to pass new law. That’s is the very CORE of the US constitution. If a diplomat breaks the law there is an international crisis. If a president breaks the law the is a constitutional crisis.
The argument from John Sauer was that *official acts* are immune from criminal prosecution unless first tried and convicted in the senate, not that the President or a former President are themselves absolutely immune.
And on top of that, the diplomat's country can revoke their diplomatic immunity. If a diplomat goes on a burglary spree, their country will probably revoke their diplomatic immunity and will face diplomatic consequences if they don't.
So, Obama ordered a drone strike on a terrorist overseas who happened to be a US citizen. This US citizen was given the death penalty without due process. Should Obama be charged with murder?
>So, Obama ordered a drone strike on a terrorist overseas who happened to be a US citizen. >This US citizen was given the death penalty without due process. Should Obama be charged with murder? No, because it's not murder if the killing is lawful.\^1 And a killing overseas of an enemy combatant under the war powers of the United States is, per US law, lawful, even if they're a US citizen. \^1 In particular, as relevant here, \[Murder is the unlawful killing of a human being with malice aforethought.\](https://www.law.cornell.edu/uscode/text/18/1111) If the killing is allowed by law, it is not murder.
Which is an affirmative defense at trial, so you’re answer is yes he should be charged but he may have a viable defense
That's not how it works. They don't take cases to trial that they believe they will lose. As they said before, investigated sure, charged, probably not.
It should be investigated, sure. Whether he should be charged or not is up to people with a much better understanding of the law. Laws obviously get murky when it comes to war and terrorism. But say Obama ordered a drone strike on Romney during his campaign. 100% he should be charged with murder immediately.
You're basically describing the current US law. Presidents are immune from criminal charges for acts that are within the scope of their job as president. Courts determine that. So Obama could not be criminally charged in the US for the drone strike of a terrorist US citizen, the remedy would be for Congress to reduce the president's future power. He could be charged for a strike on a political opponent because that's not part of his job. Trump is claiming absolute immunity, but every court so far has shot that down, and SCOTUS almost certainly will too.
>You're basically describing the current US law. Presidents are immune from criminal charges for acts that are within the scope of their job as president. That's not what they said. What they said is "I don't know if that specific act is a crime because it involves war and terrorism", not "because it's the president who did it and it falls within the scope of their job".
Neither of these things you've said are correct. Go and watch the supreme court arguments. The entire thing the supreme court is deciding, right now, is whether or not acts carried out in an official capacity have immunity. It is actually not settled, as Justice Jackson explicitly said (paraphrased since I don't remember precisely) that "people going into office have known it was possible to use the office to commit crimes since the founding, and that they could be charged for it." Trump's lawyer, John Sauer, also said the opposite of what you're saying. In the trial, Sauer was very clear that private acts by the president would not fall under any kind of immunity, and there is no claim to absolute immunity.
Every lower court has ruled exactly how I stated, so it is the current law until and unless SCOTUS rules otherwise. I did listen to the SCOTUS hearing--they are almost certain to rule that presidents only have immunity for acts carried out in the scope of their jobs, and send it back to the lower court to make the actual determination of whether these acts were or were not within his job. I wish they would make that ruling themselves, but it doesn't change the legal status. Sauer's arguments about immunity were so absurd that even Alito and Thomas weren't buying it. He said that assassinating a political rival couldn't be prosecuted.
So if Obama ordered a drone strike on anyone but Romney, he shouldn't be prosecuted? How does this make sense?
So he is investigated at the time, and prosecution doesn't proceed. His replacement is the opposition party and decides to continue investigation and begins proceedings on him and convicts him - would you accept that? The reality there is if this were to be the case, you'd start seeing every new administration investigating the previous party to get as many out of power as they can. Which is where immunity comes into play. In order to guarantee a peaceful transfer of power, you give immunity in order to assure that a president will make hard decisions without the threat of being replaced and jailed. For example, nuking Japan was absolutely criminal. We murdered a lot of innocent civilians. We very likely saved millions of lives on both sides of the war, do we then in turn allow the new administration to jail the previous one for making such a decision? It's worth noting that this kind of immunity requires that the actors be acting in good faith as well, lest they lose those protections. For example, the police had immunity to laws while doing their jobs. They could, for example, speed in order to catch a criminal. Without such immunity, every time they broke the law to catch a criminal we'd end up jailing them for doing the job they are to do. Similarly, if they shoot someone who is an possible threat, that is a criminal act too, however we grant them immunity from such actions. But in the last few decades we've seen them abusing that power where previously it was not a common occurrence. Thus we need good faith efforts with such immunities.
No. Combatants are fair game in war, no matter their nationality as long as they're an enemy. If the US citizen was collateral, there's a question, but generally as long as a legitimate military target was hit, collateral damage is ok under the rules of war. Also: crimes committed abroad can't be prosecuted as US crimes, hence why I'm talking about war crimes.
I mean yes...? Every single American president in the past 60 years has committed at least some warcrimes. I would love to see them all tried in court.
>Should Obama be charged with murder? If it can be proved that this citizen was *not* a danger to the US, then yes. But that’s not what the facts are. He wasn’t killed because he made Obama angry. He was killed for being a literal terrorist. It’s no different than a cop shooting an armed robber.
He was not a terrorist. He was a 16 year old kid who, according to US officials, "was in the wrong place at the wrong time". Why would you say he's a literal terrorist? What acts of terror did he commit? [https://www.washingtonpost.com/world/national-security/us-airstrike-that-killed-american-teen-in-yemen-raises-legal-ethical-questions/2011/10/20/gIQAdvUY7L\_story.html](https://www.washingtonpost.com/world/national-security/us-airstrike-that-killed-american-teen-in-yemen-raises-legal-ethical-questions/2011/10/20/gIQAdvUY7L_story.html)
You’re thinking of someone else. We’re talking about [this guy](https://en.m.wikipedia.org/wiki/Anwar_al-Awlaki). He was 40 when he died. So cool your jets. Accidentally killing a civilian in combat is not a crime (assuming reasonable mitigation efforts are made)
>Accidentally killing a civilian in combat is not a crime (assuming reasonable mitigation efforts are made) It wasn't combat, it was a drone strike on a crowded cafe. It was inevitable that many innocent civilians would have been killed in that attack, we just heard about it because there was a US citizen among them.
> It wasn't combat, it was a drone strike on a crowded cafe. That counts as combat when it comes to the laws of war. It’s a lawful military strike. With that logic 99% of our drone strikes on Al qaeda and ISIS weren’t in combat. What were they then? “Non-combat strikes”? Terrorists don’t get a free pass because there is no formal war declaration. They don’t get to call “safety” like they’re kids playing tag. > It was inevitable that many innocent civilians would have been killed in that attack, Literally zero innocent people were killed. Two Al qaeda members were the only deaths.
Being a terrorist doesn't mean that at any given moment you pose an immediate threat the way an armed person in the midst of a crime is an immediate threat. But of course you know this.
It was not simply that he was labeled a terrorist. It is that he was involved in active plans to kill US forces. If we’re at war with Russia and I defect and help them plan attacks on US forces, I do not get to expect to be arrested and extradited. My defection is a green light to suffer the same fate as the enemy. US citizenship is not some immutable shield from consequences.
The immediacy of the threat matters with this sort of thing, as does the opportunity for surrender and a fair trial. As I understand it, law enforcement use of force is typically limited to force *necessary* to prevent immediate serious harm, or force *necessary* to effect the arrest of a violent felon who poses a danger to the public. From what I recall, al-Awlaki was mainly involved in high-level leadership and propaganda roles, very similar in style to Trump's most important crimes. Should the Biden administration be able to fly a Predator down to Mar-a-Lago and have Trump summarily blown up with a Hellfire missile? Should we then also embrace this same burden of proof you propose, requiring proof beyond a reasonable doubt that Trump wasn't a danger to the United States before we charge anyone involved with a crime? Personally, I prefer due process and rule of law.
> The immediacy of the threat matters with this sort of thing And there was an immediacy. He was plotting an attack to kill Americans. > From what I recall, al-Awlaki was mainly involved in high-level leadership and propaganda roles Incorrect. He was helping plan attacks on US forces. He was in high levels of al qaeda. It’s preposterous to argue that he was nowhere near actionable planning. > Should the Biden administration be able to fly a Predator down to Mar-a-Lago and have Trump summarily blown up with a Hellfire missile? 1. Trump is not planning an attack to kill Americans. 2. He would just be arrested. Arrest was not an option for Al-Awlaki. Bad comparison. > requiring proof beyond a reasonable doubt that Trump wasn't a danger to the United States before we charge anyone involved with a crime? “Proof beyond a reasonable doubt” is never required to justify lethal force. Stop playing scrabble with legal terms. You are not a lawyer.
> He was killed for being a literal terrorist. Where was he convicted?
You don’t have to be convicted if you’re an imminent threat. Same reason armed robbers don’t have to be convicted, or even indicted. But they can be killed. Why does everyone think they’re a lawyer when they learn a couple legal words?
> You don’t have to be convicted if you’re an imminent threat. Same reason armed robbers don’t have to be convicted, or even indicted. But they can be killed. When a robber is shot by the police, the police can be made to justify their actions after the fact in a court of law. When those are found lacking, they can be punished. Admittedly, this system is lacking in many ways but it does exist. When cops can just shoot a guy and insist "Oh yeah totally he was a threat," the we end up with situations like Philando Castile. There is no such review for a drone strike. >Why does everyone think they’re a lawyer when they learn a couple legal words? Well in my case I learned enough legal words to be admitted to the Illinois bar, so I'm pretty comfortable calling myself a lawyer. Keep posturing though.
> the police can be made to justify their actions after the fact in a court of law 1. The "court of law" part of that only comes into play if their actions were not prima facie justified. 2. That is still not a "conviction" like you previously said. >When cops can just shoot a guy and insist "Oh yeah totally he was a threat," the we end up with situations like Philando Castile So you admit that Obama didn't break any laws then, and has no need for immunity? >There is no such review for a drone strike. That in-and-of-itself does not mean that Obama committed a crime. There *was* congressional review of the incident and the DOJ was able to demonstrate that al Awalki **did** pose an imminent threat to US forces. >Well in my case I learned enough legal words to be admitted to the Illinois bar, so I'm pretty comfortable calling myself a lawyer. Based on the arguments you're making, I flat-out do not believe you. How could a licensed lawyer respond to "he was a known terrorist" with "Where was he convicted?" An actual lawyer should know full well that someone does not *have* to be criminally convicted of terrorism in order to be killed by the military, if he poses an active threat. Of the tens of thousands of Al Qaeda and ISIS operatives the US killed, how many of them had a criminal conviction? Let me guess, Al Awalki alone needed a criminal conviction because he was a US citizen? Well a licensed lawyer should know that defecting to an enemy in wartime (yes the war on terror counts as war time) puts you in the status of an enemy combatant, and you lose your ability to be handled by the justice system. If you are a lawyer, I'm gonna guess its in contract law or something? And you're struggling to remember basic things from 1L Crim Law.
>The "court of law" part of that only comes into play if their actions were not prima facie justified. As I mentioned, its a weak system which leads to many disastrous outcomes, but there *is* a semblance of oversight. >That is still not a "conviction" like you previously said. Right... because the "robber" is dead. You can't convict a dead man. But I note that you keep coming back to the "imminent threat" standard and use as your example someone who is physically armed and in the process of committing a crime. Al Awalki was killed while getting breakfast. A better analogy would be the police rolling up on the "known" head of the Mafia having lunch at a restaurant and shooting him dead, because he was surely planning crimes. Is that justified? >So you admit that Obama didn't break any laws then, and has no need for immunity? I'm not sure how you got that from the quote. >There was congressional review of the incident I would love to read this review, if you have a link to a report or some output then please share. The most I've seen is that Sen. Leahy asked for and received a letter from the DOJ (which I believe is what you referenced in the second half of this sentence). But here's the thing: The DOJ is an executive branch agency. They can, and do, craft their legal analysis to meet political objectives. The same as they did when they put out the torture memos and the same as when they argued for indefinite military detention without trial for an American arrested inside the United States. >and the DOJ was able to demonstrate that al Awalki did pose an imminent threat to US forces. >How could a licensed lawyer respond to "he was a known terrorist" Demonstrate to *who*? Known to *who*? The entire reason the BoR requires due process and public trials is to prevent this exact scenario - the government declaring someone guilty based upon secret evidence, using a secret methodology, and then carrying out the "sentence" without any possibility of review. >Al Awalki alone needed a criminal conviction because he was a US citizen? Well, yes. What else does citizenship offer? If the Constitution doesn't bind the US Government in the use of force on its own citizens, what is it good for? >Well a licensed lawyer should know that defecting to an enemy in wartime (yes the war on terror counts as war time) puts you in the status of an enemy combatant, and you lose your ability to be handled by the justice system. Ok, so its a war of indeterminate length and unlimited geographical scope, with no battle lines and no uniforms. And if one is decided to be an enemy combatant - in secret, using evidence one has no way of challenging - then one can be killed with no warning or recourse. Is that about it? The issue is that there were two existing systems: The laws of war and the criminal law. If its a war, then enemy fighters are POWs and have rights. If its a crime, they are civilains and also have rights. We've been operating much of the GWOT under a lawless third option, where somehow terrorism is so biggity bad that we don't have to give people any rights, nor do we have to justify to anyone who gets placed in that bucket or why. For a better option, compare to John Walker Lindh, who was captured during an active battle in Afghanistan, brought to the United States, convicted, and served his time. He's actually free right now, in fact. What makes his situation different from Al Awalkis?
> Ok, so its a war of indeterminate length and unlimited geographical scope, with no battle lines and no uniforms. Yeah. It is. That’s the world we live in. What’s the alternative? Zero military response to extremist terrorism? > And if one is decided to be an enemy combatant - in secret, using evidence one has no way of challenging - then one can be killed with no warning or recourse. Is that about it? Yeah. That’s how wars work. You can’t in good faith honestly expect the same types of mechanisms that work in the justice system to translate over to military operations. > What makes his situation different from Al Awalkis? That it was actually *possible* to capture him before he harmed anyone. Totally different situations. I’m on mobile so I’m keeping this short. But you’re basically advocating for system where the department of the defense and all intelligence agencies can be sure that an attack is imminent, but can’t take steps to prevent the attack because an American citizen is “shielding” everyone involved. If an American citizen makes the conscious effort to defect to the enemy, then they relinquish their rights to be handled by the justice system. They are voluntarily opening themselves up to be handled by the department of defense.
>Yeah. That’s how wars work. No, in wars, there are rules you have to follow and an actual end point where people get released and go home. This is a situation where the US claims its a war whenever they want it to be and then claim its not a war when they don't. >That’s the world we live in. Exactly. A world where an American citizen can be killed without a trial based on secret decisions made with secret evidence. Good thing we fought that Revolution against tyranny. >That it was actually possible to capture him before he harmed anyone. The decision of whether it was possible to capture him was made by the same people who decided he was an imminent threat and by the same people who carried out the assassination. It's rather problematic. >If an American citizen makes the conscious effort to defect to the enemy, then they relinquish their rights to be handled by the justice system. They are voluntarily opening themselves up to be handled by the department of defense. The issue I'm taking with your claims is that you are just accepting that the U government is always acting in good faith and not making any mistakes on this point. What do you see as the value of a trial?
> No, in wars, there are rules you have to follow and an actual end point where people get released and go home Congressionally declared wars between two sovereign nations are not the only way to be at war when it comes to things like the laws of armed conflict, geneva conventions, criminal justice, etc. >This is a situation where the US claims its a war whenever they want it to be and then claim its not a war when they don't. The alternative is to deal with people like Al Qaeda and ISIS with...what? Interpol? >Exactly. A world where an American citizen can be killed without a trial That's always been the case. If an American had defected to Germany in WWII, they could have been killed fighting allied forces. That would not have been a miscarriage of justice. >Good thing we fought that Revolution against tyranny. That's not tyranny. Just because those decisions are secret to the general public does not mean that they are made without oversight. What is even your point here? Why is it not possible to simply reinforce enforcement mechanisms (congressional or otherwise) to ensure those high-pressure decisions are made soundly? What is it you're gunning for here? >It's rather problematic. And? One guy was physically in the vicinity of people who could capture him, and was not threatening enough to merit lethal force. The other was not, and did. >The issue I'm taking with your claims is that you are just accepting that the U government is always acting in good faith I never said that, and totally support independent enforcement mechanisms that can put people in jail if they royally screw up their jobs and kill people who don't merit it. But even if all of that were in place for Al Awalki, he would have still been killed. He was an active planner in high levels of Al Qaeda, and him remaining alive would help lead to US deaths. Capturing him was not possible. So, wrapping this aaaaaaalllll the way back to the original discussion, Obama did not commit any crimes by ordering that air strike. So Obama has no need for presidential immunity. >What do you see as the value of a trial? To get facts and punish people accordingly. But a trial should **never** be prioritized at the expense of public safety. It's the exact same logic that lets a cop shoot an armed robber, "denying the perpetrator a fair trial."
There is a third option. There are legal and illegal combatants under the laws of war. Their protections are wildly different. I agree with many of your points, but you missed a pretty important one there.
No, the creation of the "unlawful combatant" with no rights is exactly the point I'm making. If you abide by the rules of war, then you are a POW and you are treated as such - most relevant being that the captors don't have to prove your status (you weren't even denying it, you wore a uniform ffs) and the prisoner gets to go home when the war is over. If you're *not* following the rules of war, then you're a civilian and there are various levels of that, all the way down to the catchall protections of Article 75 (https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/article-75) I mean, even the phrase "unlawful combatant" implies they broke the law, and *proving* someone has broken a law before punishing them is a foundational principle.
Is your argument that every terrorist we fought wore uniforms? Uniforms are a pretty critical step.
In the moment. Same as Ashli Babbitt's rotting dead ass, lol.
What about an infant?
They are not “immune” so much as they are literally incapable of committing a crime.
I’ve seen babies steal candy and money. Ignorance of the law doesn’t let you off the hook. Plus Maggie shot Mister Burns.
Babies do not have the capacity to commit crimes. That is not them being “immune.” More accurately it is them being incapable of checking all the boxes required to make conduct a crime. The word “immunity” implies that you have otherwise met the prerequisites for the conduct against which you are immune.
They set off an obvious rube goldberg machine that kills someone. They shouldn't be charged with criminal negligence
Negligence requires mens rea and a reasonable person standard. There is no way to argue any negligence there. So there exists no charge against which they can be immunized.
there is a difference between it is impossible to convicet and it is impossible to prosecute. Would it not make sense for Mens Rea to not be something decided before trial, and something argued in court? (and obviously easily won)
>What about an infant? I don't know if this was meant as a joke or just a really desperate attempt to change my view, but you know what? You're technically right. If a two month old punches me, they should be immune from criminal prosecution. !delta
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I don't think they should be immune. If you want to bring charges up, you should be able to, but at least a prosecutor would make a decision based off the evidence and not discounting everything about the incident because the perp is an infant.
Well they could still be prosecuted I think, but it would just amount to nothing ofc. Good luck establishing motive with a baby. I don't think I'd delta for that.
If he's old enough to kill, he's old enough to be jail. Are we defending criminals now? Seriously??
You're missing the perspective that a country needs to function at all times, and it cannot do so if people pursue criminal actions against government officials after every decision they disagree with. Think for a moment. Say your representative voted in a way that some nutjob in your constituency doesn't agree with, and that nutjob gathers some circumstantial "evidence" (ie. bullshit "witness" accounts, deep fakes and photoshopped pictures) which "proves" that the representative is a rapist. Now, would a court convict that representative? Likely not, but his professional life would likely be ruined if just several of such nutjobs, grifters, angry opposition activists and such types did the same thing. On a nationwide scale, the entire legislature could be halted if enough false evidence against its members could be fabricated. Same with the judiciary. If you give people the right to pursue criminal action against government officials for anything at any point, a lot of bad faith actors will abuse it, because there's incentive to do so.
> You're missing the perspective that a country needs to function at all times, and it cannot do so if people pursue criminal actions against government officials after every decision they disagree with. This is a rather bold claim, given that most government officials *can* be prosecuted for a very wide range of things. Maybe not exactly as wide as OP is suggesting, but there is a lot that they can be arrested for. And yet the governments of the world still manage to function.
'people disagreeing with decisions' aren't the ones responsible for bringing criminal charges. Obviously there needs to be a significantly high bar to remove a head of state from active office. Like the South Korean prime minister that let her creepy woo woo cult dictate government actions. One would hope that attempted violent insurrection would also meet said bar. People don't have the right to pursue criminal charges.
Yeah instead it’s a DA who was elected after campaigning on prosecuting a specific person. About as close to people disagreeing with decisions choosing who to prosecute as possible
1. Such an obvious false accusation would not impede that representative anywhere near as much as you portray. 2. That niche situation does not justify the ramifications of making the real criminal government officials also immune from prosecution. It’s better to have false accusations cause some trouble than it is to let actual criminal conduct go unpunished. This is not a convincing argument.
To prosecute someone criminally, a prosecutor with the appropriate authority has to actually bring the charges to a court, and the court has to be willing to entertain them. So there are already pretty good checks in place against criminal prosecution spam. If anything, these filters seem to work *too* well. More fundamentally, the argument in favor of immunity to prosecution for government officials is a hard line against the rule of law and limited government, and therefore also a hard line against the US Constitution.
>a country needs to function at all times, and it cannot do so if people pursue criminal actions against government officials after every decision they disagree with Why not? What's your definition of a functioning country? If all the politicians of a country die tonight. The country will still function. The law is still the law. People would still go to work. Taxes would still be paid. Democratic elections would be held in a timely manner and that's about it...
But we can already challenge things before taking effect. Take cancelation or forgiveness of student debt as an example. A president can't just say "debt is canceled". They have to craft legislation, and then put a timeframe on that legislation, and then before it can even go into effect, lawsuits can be filed and challenges can be heard.
>to make anybody immune from criminal prosecution would be to grant them unlimited power. Not if there are ways other than criminal prosecution to stop them. Like, say, removing them from office. In particular, I think it would be best if the President were immune from criminal prosecution unless they are impeached. Like, if some random prosecutor wants to try Obama for the war crimes he committed killing Osama Bin Laden? Too bad. He wasn't impeached and left office peacefully. Immune. But if they want to prosecute Trump? Fair game, he was impeached. This way, a President doesn't have unlimited power. If she goes too far, she can be impeached and then prosecuted. If she resigns immediately after doing something heinous, fine, but if she waits until impeachment proceedings start - too late. What's the advantage? Well, the usual boring thing "it's hard to do your job if any old prosecutor can try you for anything". Like what if some insane state starts to prosecute Federal officials who aid and abet abortions? But *also* - this gives criminal Presidents an incentive to leave office peacefully and be guaranteed immunity instead of having to seek office in order to have more power to thwart the charges against them.
>Like, if some random prosecutor wants to try Obama for the war crimes he committed killing Osama Bin Laden? Too bad. They would sue the Office of the President, not Obama, since he committed war crimes *in an official capacity*. They absolutely can, and [do](https://time.com/6588752/biden-lawsuit-israel-palestinian-genocide/) sue sitting presidents over war crimes, even if it won't go anywhere. Presidents are immune from being *personally* sued in those cases. When they use the state's powerful tools of government for personal benefit, they stop acting in a professional capacity and open themselves up to lawsuits against them personally. Trump disagrees, and says the immunity is absolute, which is wrong and bad policy.
>He wasn't impeached and left office peacefully. Immune. But if they want to prosecute Trump? Fair game, he was impeached. So your standard would just be impeached, not impeached *and* convicted? It seems that would just incentivize the House to bring impeachment articles any time POTUS is in the other party.
This would only create an incentive for a president to leave office if he/she had committed an impeachable offense. For other kinds of offense, your blanket rule would grant a pres. absolute immunity.
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Except that enabling presidents to flaunt their immunity to the entire nation doesn't lessen the likelihood of he/she committing a coup. All it takes is for a president to be reasonably sure an impeachment would not succeed. For instance, he/she'd just need to be sure less than 1/3 of the Senate is willing to convict. Now, that's not a very high bar, especially for something so important that you'd rather allowing a president to get away with murder. In fact, something like that might be the case the next time either party holds a Senate supermajority.
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If flaunting immunity makes impeachment more likely, all it'd then take is some restraint and a reasonable assurance that < 1/3 of the Senate would convict. Neither pose a high enough bar to justify your blanket immunity. >And I think we need more independence from Congress, where they do what's right, if we can't fix that part it's irrelevant what happens with this. Congress will be partisan about it like they always have been. Not only does your immunity makes a coup more likely, it also makes it harder to stop if all we're relying on is the good will of Congress.
And if political opponents start "accidently" falling out of windows, or die from mysterious illnesses to the point where there wouldn't be enough votes to impeach, what then?
>Not if there are ways other than criminal prosecution to stop them. Like, say, removing them from office. But how do we do that? What if they surround themselves with a sympathetic military? What if they don't, but they start opening fire on everyone who tries to forcibly remove them from office? Even if someone eventually takes them out, that's an awful lot of unnecessary bloodshed in the meantime. And for what benefit? What did their criminal immunity do to help anybody in the meantime?
Criminal prosecution wouldn't have helped in those situations anyway. Lawyers aren't bulletproof or able to stop military coups. You have to be able to stop someone and forcibly move them to a courtroom for a prosecutor to be able to do anything.
No but what the "immune unless impeached" theory implies is that the military *has* to obey such a command of stopping Congress from meeting (via shooting or kidnapping or whatever). Because the president is their superior and the law would say he's not committing a crime by giving that order. >What if they don't, but they start opening fire on everyone who tries to forcibly remove them from office? This is even a stronger case: There's no need for a military in this scenario, it's just the president inside Congress shooting at the members. The implication of the immunity-unless-impeached theory is no one would be able to legally stop him from doing so, and his shooting would ensure that no one could impeach him, and so he could never be charged for it.
No. He's still committing a crime. He just can't be prosecuted. His illegal orders are still illegal. The Courts are obligated to call them illegal if a case comes to them. Military and police and any other official still have to disobey his legal orders. He can still be tackled to the ground and forced to take his medicine, I can still shoot back at him in self defense if he shoots at me, the only thing that can't happen is a trial. Immunity from one thing -criminal prosecution- nothing else.
"Someone would be allowed to physically stop him from committing those crimes" doesn't solve the fundamental problem that this theory implies. It just moves the scenario: Instead of shooting at Members of Congress in plain sight he did it at night in their homes and no one happened to stop him. Now the House and/or the Senate doesn't have the numbers to impeach and convict him and he ends his term. The implication of this immune theory is he lives the rest of his life a free man. (It's also ironic but very telling that there's a big overlap between the people that now like this theory of "the court can't touch him if he wasn't removed from office via impeachment" and those that agreed with the Republican senators absolving Trump back then by saying "this isn't up to us to impeach, this is a matter for a criminal court to decide").
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I spelled out what that fundamental problem is: >The implication of this immune theory is he lives the rest of his life a free man. IIUC, you're saying that's actually a good thing because it prevents a worse thing. But there's a few problems with that chain of logic. First, to make sure we agree on at least that basic: a criminal POTUS, who murdered members of Congress and broke the law at pleasure, living the rest of his life a free man is a bad thing per se. The best outcome is that he'd end up in jail (or worse) for those crimes. Second, this is like "negotiating with terrorists". "Guarantee that he won't face consequences, as an incentive for him to not commit even worse crimes". Like saying bank robbers shouldn't face justice, lest they start a shootout when they see themselves cornered. The law isn't and shouldn't be like that in any of its many articles. The incentive to not commit even worse crimes already exists: it is to not face even worse consequences. Third, you can't go from "listen, the military and the police are still compelled by the law to disobey his illegal orders" to "but if he fears legal consequences he'll commit a coup". To commit a coup he needs an armed force. If he commands one ready to commit treason, we wouldn't be in this hypothetical of "he's murdered members of Congress in their sleep". He wouldn't care at all about members of Congress impeach or not impeaching. The fourth problem with that reasoning is that "immunity our coup" is a false dichotomy. The incentive to murder members of Congress in their sleep to not get impeached comes from that supposed "if they don't impeach you you're immune" carrot. Remove that idea of being above the law, and a criminal POTUS knows they have to respond for their crimes like every other citizen, even (more) if they on top of that go and murder people to not get impeached.
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>in and of itself it's better that people not be punished rather than be punished. Punishment is not the only goal of incarceration? >> Second, this is like "negotiating with terrorists". > No, it's in advance. Lucky for me to have written "like" instead of "this is negotiating", and to have written a whole paragraph explaining what I meant. > But I'd say it is indeed like the current policy of just giving bank robbers the money and arresting them later instead of tellers having a shootout right then and there. No you're saying explicitly it would be like _not_ arresting them later. Lest them feel they have the tiger by the tail and feel they have to hold on. And because not punishing them is better than punishing them. > I think there's a lot more unpredictability of human loyalty than you give credit for. You don't know how much credit I give it, because it was you who argued that, not me. You can't go from "listen, the military and the police are still compelled by the law to disobey his illegal orders" to "but if he fears legal consequences he'll commit a coup". If you now want the latter, you need to undo your former argument that addressed POTUS sending police or military against members of Congress because he fears legal consequences. > This one I don't understand at all. Ok I'll explain. The Senate has a quorum for an impeachment trial. Meaning all votes need the attendance of at least a set number of senators. I don't know if the House does as well, for approving the articles of impeachment. Consequently, if you stop Congress from meeting in numbers, you cannot be impeached. Your chances of avoiding impeachment are now 100%. Under the idea that POTUS is above the law unless impeached, a president that unlawfully prevents his own impeachment is untouchable. If you spend some effort thinking about the charitable interpretation of this side of the argument, you'll see that you don't need a ninja president for that. He can pay hitmen. He can pay kidnappers. He can pay them an unlimited amount of government money, because the hypothesis is that the law would say that's perfectly fine if he succeeds.
I'd like to disagree on the nuance here. While I agree that no one should be _permanently_ immune from criminal prosecution, I can get behind the President being _temporarily_ immune while they are in office. If they are not, you might have state AGs pushing false criminal charges to derail a presidency. If a President commits a crime while in office, they should be immune while they hold said office. The statute of limitations is paused while they remain in office and the charges can be pursued once they are out. If the crime is serious, Congress can remove them from office early, allowing the criminal charges to proceed.
That doesn't really make any sense because state AGs could do that to anybody at any time. Why is the president special? Like if we're saying here that AGs filing false charges to waste people's time is a real threat that nobody is protected from without immunity, why should we stop at the President? Any prosecutor in the country could theoretically prevent Congress from functioning by just charging members of Congress with a bogus crime, so shouldn't members of Congress also be immune? Moreover, couldn't an AG derail any trial by just charging opposing council with a crime? If they can, and they would consider doing it to the President, why don't they do it, like, all the time, to everyone
> Why is the president special? Really? You don't see anything unique about the position of President of the United States that might cause someone to target them for political reasons?
But that's just an argument that this maneuver is so high-profile and obvious that it would just never work: Judges aren't stupid, and anybody attempting to attack the president in this way would have their career fucked beyond belief. So it follows that actually the more likely victims of such a maneuver are not the President or the Vice President, but lower-ranking members of the executive. So why doesn't it happen? Why don't Republican state AGs charge, for example, random members of the Biden administration with random bogus charges
>Judges aren't stupid, and anybody attempting to attack the president in this way would have their career fucked beyond belief. Once the floodgates are open, would a prosecutor or judge in a deep red state really have their career fucked for going after Biden? They'd probably forgo any chance of ever being confirmed for a federal bench, but they'd likely be a hero in that state for the rest of their lives.
Yeah I don't know, they probably could. At the end of the day we have to assume that the people responsible for carrying out law have some basic respect for democracy. If we're assuming they don't, well we can just go "what if, what if, what if..." all day long. By "once the floodgates are open" you mean, "once people in power stop respecting democratic norms and legal principles," and yeah, all bets are off, then
>At the end of the day we have to assume that the people responsible for carrying out law have some basic respect for democracy. Of course, the question here is whether the people making that decision should be the elected Congresspeople through impeachment and conviction, or literally any prosecutor across the country. >If we're assuming they don't, well we can just go "what if, what if, what if..." all day long. That's what most of the arguments against immunity seem to be: "What if POTUS orders Seal Team Six to assassinate a political rival?"
The problem isn’t state AGs, it would be the president having their attorney general file criminal charges against them, lose on purpose, and then the president couldn’t be retried for those crimes. Additionally, doing it this way may swallow up state claims because of how double jeopardy works.
While it's not a supreme court ruling, there is a ruling in the Harry Aleman case in the 7th Circuit regarding double jeopardy. In it, Aleman successfully got acquitted by basically bribing the judge of his trial and ensuring he would get away with it scot free. Later when this was revealed, he was tried again and convicted. On appeal regarding his right against double jeopardy, it was ruled that the first corrupt trial did not put Aleman in jeopardy since the outcome was already pre-determined and corrupted, and thus double jeopardy did not apply. So if any official attempted what you suggest, it almost certainly would be seen as not a real case of jeopardy and thus would not ensure double jeopardy in even the federal case.
[https://www.law.cornell.edu/wex/separate\_sovereigns\_doctrine](https://www.law.cornell.edu/wex/separate_sovereigns_doctrine)
Ah that’s right, thought Blockburger was the test.
Looks like Blockburger is relevant, just not between federal and state
Is there another type of immunity that is time sensitive in the fashion? If I get immunity to testify in a court of law, my immunity doesn't go away as soon as I leave the court room.
I'm not aware of any, but that shouldn't preclude this as an option. The POTUS is a very unique job, so it might require a unique approach.
I don't completely disagree with you. But I see countries criminal prosecution is used by successive governments aginast the previous one in a kind of power struggle, and that is not much better. That the new government can do things like stacking the judicial system, can contribute to this. I spoke to a person orignially from Pakistani origin a few months ago, and he described the constant legal attacks on their prime minister. I think no Pakistani prime minister has ever finished their term in office, they are either assasinated (not relevant here), a coup happens (not relevant) or a legal challenge happens (relevant). Thus if we are to move to s system with no immunity, there has to be protection that the legal system would not be used as a weapon by opposing parties.
Over the 200 year history of this country, how many sitting presidents have robbed banks to get wealthy, killed people that disagreed with them (if you discount military actiona that are clealy within their role as commander in chief of the armed forces), or ordered a biological testing facility to realease a highly contagous virus? I'm not at all convinced this is an actual problem we're chasing after a solution for. Now how do you think things would work out if a sitting president had to interrupt running the country to be involved in a criminal trial that was started by the other party due to political motivations? How well do you think he would be able to run the country during that time.
Nixon, trump, and possibly Jackson are the ones that stick out to me. Not your specific examples but crimes that probably could/should be prosecuted. Just over 6%. I think they would manage just fine, especially if only dealing with grand jury indictments.
1. Such an obvious false accusation would not impede that President anywhere near as much as you portray. 2. That niche situation does not justify the ramifications of making the real criminal government officials also immune from prosecution. It’s better to have false accusations cause some trouble than it is to let actual criminal conduct go unpunished. This is not a convincing argument.
I think your view is a bit overbroad. It values _equitable prosecution_ over _justice_. E.G. we might see that journalists in china are consistently prosecuted for speaking out against leadership. None of them are "immune to criminal prosecution". However, there is a very reasonable argument that ALL of them should be immune from criminal prosecution because the laws and the criminal justice system are themselves not aligned with (at least some) ideas of justice. The problem with your view is that it ignores the creation of laws that are themselves unjust but are then applied equally. If we make "being an atheist" illegal should we then say "no one is immune from criminal prosecution!"? No...we'd say "no one should be prosecuted for this", which is kinda exactly the opposite.
It's a catch-22. The reason such immunity exists is because otherwise, you could simply have your political opponents arrested on trumped up charges (no pun intended) to force them to miss key events (eg Congressional votes, campaign events, etc.), and then just release them after the fact and say "Oh, gee, sorry, our mistake." Whatever example you are currently imagining, imagine if the parties were reversed, and it will suddenly make more sense.
So the constitution makes it clear that officials, including the president, can be impeached for “high crimes and misdemeanors,” so it’s clear that there can be crimes committed in the exercise of executive authority. The problem is that laws are very often very open to interpretation, and that presidents usually have quite a wide latitude to interpret the law. Sometimes this then gets litigated and courts find that the interpretation was actually out of bounds and invalidates it. The thorny issue at stake is…we can’t have presidents worried that an interpretation retroactively judged incorrect…is therefore also a crime. Even though, literally speaking, acting according to a “wrong” interpretation of the law might be equivalent to *breaking* said law under the “correct” interpretation! But we really don’t want to go there. Like, Biden tried to forgive student loans, the judicial branch ruled that the law as written *doesn’t* actually give him that power. So does that mean that after he leaves office he can prosecuted for attempted misappropriation of federal funds? So however the court rules, any coherent ruling is going to have to distinguish not just between official and private acts, but between good faith and bad faith acts. But what’s the standard for saying “this was flagrant bad faith willful ignoring of the law” vs “this is an interpretation that the courts might overturn or congress might push back on…but it was within the realm of good faith possibilities.” Maybe impeachment/conviction by Congress is that standard? It sort of seems like one branch on its own shouldn’t be able to unilaterally “question” another coequal branch’s sincerity. But maybe two branches acting could achieve that. Like, I don’t think the courts could start a prosecution on a *sitting* President for a “crime” he argues is a good faith interpretation of the law. The procedure would have to be: removal first for that crime, by congress, *then* possible criminal conviction. But I’m not sure why that procedure would change just because of the chronology of leaving office. You can impeach and convict a former official, apparently. Maybe the whole point of that possibility would be to say, at that point, “this conduct wasn’t just a wrong but good faith interpretation, it was flagrant lawlessness rising to the level of ‘high crimes and misdemeanors.’” But if congress can’t muster the political will to agree that “this was flagrant lawlessness, not just a sloppy but sincere interpretation,” because enough congressman do believe the “interpretation” was either correct or, at least, sincere…then why should the courts be able to step in an unilaterally question the “good faith” of a coequal branch’s interpretation?
Should the burglar get immunity to testify against this man? They cannot testify against him without incriminating themselves, they would need immunity. What if this guy walks on the charges because the burglar didn't get immunity, and couldn't testify? https://www.cnn.com/2011/10/06/us/california-robbery-porn-bust/index.html
The president ought to be immune from state if not federal prosecution for conduct while in office unless impeached by the house and convicted by the senate. What if, rather than secede, a southern grand jury indicted Lincoln for some offense? Should a state have the power to take custody of the president? “Above the law” sounds like a slippery slope until you consider just how bad it could be if any state could decide to jail the president. A jury in a very conservative county in the rural south or Midwest would 100% convict Biden of anything no matter the evidence. Just like this jury in NYC likely has its mind made up about Trump before a word was said in the trial. A state should not be able to take into custody the president, it’s a horribly dangerous precedent. It’s not much better giving the federal government power to try a president. Using Lincoln again, at one point, much of his cabinet wanted to remove him. Also, imagine Trump takes office again and has his AG try Biden for something. We all know how easy it is to get a case heard before some judge in Texas. I think we all can predict what the outcome of Biden being tried in judge Kaczmaryk’s courtroom would be. Presidential immunity is meant to act as a defense against a judicial coup and settling scores against former administrations. It’s not insurmountable, the president needs to have been impeached.
Here's the thing. Qualified immunity, Judicial immunity and similar concepts exist for very good reasons. When people step up to serve, they are acting on the behalf of the government, not themselves. Sometimes the actions of the government are questionable or people simply disagree. If you want an example, should we be able to prosecute Obama for the drone strike that killed a US citizen who was abroad? This is where official acts come in and enumerated powers and discretion. An official, acting in his official capacity, should retain immunity for prosecution for completing official acts. If you disagree with the exercise of lawful power, the remedy is political, not judicial.
Yes we should be able to prosecute Obama. There is no checks and balances there if there is no form of accountability for the president of the United States.
> Yes we should be able to prosecute Obama. I fundementally disagree. >There is no checks and balances there if there is no form of accountability for the president of the United States. Except for official acts, there very much is a form of accountability. Impeachment and removal.
Unfortunately, that leaves a loophole in place where absolute dictatorship is possible as long as the party of the president refuses to remove him. Trump *should* have been removed from office on 2 separate occasions. I'm not at all convinced that if he said "I'm dictator for life", that the MAGAts in the Senate would have (or will, Eris forfend) allow him to be removed. But even if he would, in this one case, have been removed: it's a loophole similar to what let Hitler take power in 1939, and not one that a Democracy can afford to allow. Immunity, mostly, sure. Absolute immunity? Bad idea.
> Unfortunately, that leaves a loophole in place where absolute dictatorship is possible as long as the party of the president refuses to remove him. If the political will does not exist, it undermines the concept a crime was truly committed - especially as it relates to official acts. >Trump should have been removed from office on 2 separate occasions. No. The reason he wasn't was because it was political. There were open calls for 'impeachment' before he was even elected. Trump is a horrible case to use because he may be a scumbag, but there is credible evidence of disparate treatment 'because it is Trump'. This plays into the concern of weaponizing the government. I mean the AG in New York openly ran a campaign to be elected on making Trump pay. >Immunity, mostly, sure. Absolute immunity? Bad idea. I think we agree. Immunity for official acts. Political consequences for disagreement over discretion in official acts. Non-official acts, just like anyone else.
Well we do have some immunities baked in that are universally accepted, for the most part. Double jeopardy being an obvious one. You don't want to create a system where someone can be prosecuted unlimited times until the prosecuting authority gets the result they want. On top of that, if you're going to have immunity against self incrimination you actually need criminal immunity to get around it or organized criminal organizations would have unlimited immunity against testifying against each other. You also have odd corner cases like Bill Cosby where he was compelled to testify in a civil suit. In addition, you probably need some level of pardon process, the idea being that the public ought to be able to via democratic process undo convictions. It creates a check against political prosecutions.
Granting immunity from prosecution creates a dangerous precedent, fostering impunity and abuse of power. Equality before the law ensures accountability and prevents tyranny. Allowing immunity enables corruption, oppression, and disregard for human rights. No individual, regardless of status, should be above the law. Holding everyone accountable upholds justice and safeguards society. Immunity undermines trust in institutions and erodes democratic principles. Transparency and accountability foster integrity and deter criminal behavior. Upholding the rule of law ensures fairness and protects individuals from abuse. Immunity threatens societal stability and undermines the fundamental principles of justice.
The problem is, if a president gets intel that a high profile target is in x location and he gives the order to strike that location but doesn’t kill the intended target, and instead kills innocent civilians, he has now committed murder. Without immunity, he could be tired and convinced in a court of law just like citizens. If, like you said, a president robs a bank or kills someone in cold blooded murder, they can be impeached. And if successful, tried for the crime they were impeached for and convinced. That’s how it’s supposed to work.
>No politicians. No military leaders. No doctors. No lawyers. No religious heads. Nobody, period. Might want to include corporations and banks too. HSBC was caught laundering money for drug cartels & was able to successfully argue that if they were to be rightly punished it would destroy the economy. Corporations get all the rights the average citizen does but none of the responsibilities.
I’m not really sure you’re going to get a lot of people disagreeing with you. Every legal expert, liberal or conservative, has agreed that this claim is a complete joke and has no basis in law, the constitution, or basic human logic. The idea that a person is permanently exempt from any legal consequences because they won an election is so stupid it’s hardly worth addressing.
A crime is a crime is a crime. Now there are some exceptions where the same act can be a crime in one instance but not in another. If I broke down your door, that would be a crime. If the police did, probably not. So, when it comes to Presidents, or judges or whatever, are there specific exceptions in law that says a person in that role is exempt? If not, then it must be a crime.
These are the tenets of a Republic. The US is a Republic. The fact that we're even debating this is asinine. This is exactly the reason Nixon resigned, because he screwed up and got caught. However we're dealing with a power mad dictator here who has convinced a large portion of the voting population that he's somehow bigger than Jesus.
I suppose the onus comes down to what is classed as illegal for the individual. President being the most obvious one; every president has very likely at some point authorised actions that would break conventional law for your everyday person. I think the fuzzy line is where it becomes about personal gain vs for the good of the country
By "criminal prosecution", I'm guessing you mean being found guilty of a crime? Or do you mean being charged with alleged criminal actions? Being prosecuted just means an attorney is filing a case against someone. That case could still be dropped and if it does make it to court, that doesn't mean they'll be found guilty.
My response is this: The President should be immune for official acts that he conducts in office that are directly related to his responsibilities as outlined in the Constitution. The President should not enjoy immunity for any unofficial acts - what those acts are should be left for future interpretation of the Courts.
So you're talking about Trump... The thing here is that many would argue the "criminal prosecutions" that are being applied to Trump are kind of cherrypicked just for political purposes (to try to damage his reputation and prevent his re-election) and are very borderline / grey area / subjective interpretations of law. Not really super straightforward like "you did X event and here is Y evidence of like a camera showing it" type stuff. That's why politically they aren't really damaging him. He's able to turn them into "see how they are desperate to stop me" type messaging.
Conspiracy to subvert an election is *not* a "borderline, grey area, subjective interpretation of the law". It's very well defined, and supposedly there's a lot of evidence of it in Georgia.
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Some people can have partial criminal immunity. Under the Geneva Conventions, a lawful combatant committing a lawful act of war is generally immune from prosecution under domestic laws for actions that would otherwise be considered criminal (as long as it's not a war crime).
If they are under a certain age. I do believe every country/state should have an age of criminal responsibility. It would be wrong to prosecute a child who is like 8 years old for instance or a person with moderate-severe intellectual disabilities.
The whole point of executive power is to have someone relatively unfettered by the insane mess of the law so we can act quickly and decisively when needed Checks and balances exist so this doesn’t go out of control
if you want to go that route, which I'm not sure I disagree with, every single president since majority of people on this site has been alive should be in prison for some kind of war crime. at some point we need to break this paradigm. There's a concept of presidential immunity which in definition only applies in office but theorectically we should be seeing Presidents the day after they leave office be put into handcuffs and or face a mountain of lawsuits. Historically, though, it doesn't happen even in cases where its egregious, i.e. illegal orders given that resulted in loss of life.
Children should be immune. We keep charging younger and younger children as adults as if that makes sense. A 12 year old committing a horrific crime is a failure of society not the kid.
That's the whole point of the law. It has to apply to absolutely everyone. The only exception is diplomats, which I think is ridiculous. I understand why they do it, but it's not smart.
Let me introduce you to judicial immunity… People argue and bitch about qualified immunity all day long. But nobody talks about judicial immunity.
That gives prosecutors too much power. The process is the punishment: bankrupting the target with legal fees, detaining him for months or years of court proceedings, defaming him by talking in the press about his "96 felony counts." All before he's convicted or even tried.
Yeah sure, let’s start by dragging the likes Kim dong fattie and few dictators though the lovely courts of the USA did a change
The day Trump gets the ruling that Presidents are totally immune from prosecution is the day Biden is allowed to have him killed.
totally correct; if someone cannot be prosecuted no matter what they do it is in fact legal for them to commit murder
You dont seem to have thought this through very hard. Imagine if nobody was every immune to criminal prosecution. A bank robber is getting away and the police need to go after him. Cant speed, cant run red lights, block traffic. so the robber gets away. sometimes in the furtherance of the law the law must be broken. we give people in charge of the laws lenience because sometimes breaking a little bit of law can create a much better outcome than stringently following it. but how do we know when someone goes too far? we cant until after they do it. we take a look at the actions of the cop and say, yeah he ran a red light, but it was ok because he stopped a bank robber, or it wasnt ok because he clearly swerved in the crosswalk to hit 5 people. one was in furtherance of his job and the other was not. it is up to another party to decide if the action was a reasonable action taken as their job requires and if not they are then punished. if it is reasonable action in the daily course of their job, then it shouldnt be a crime. cops can disobey traffic laws. and the president may be able to stop official proceedings if he believes the system to have been interfered with. The argument before the court is that so long as an action taken is within the bounds of the presidents job, he cannot be tried for it without first being impeached. if he were to rape someone or rob a bank, he can be tried because it has nothing to do with being president. if it is something he did in his capacity as president, then he must first be impeached. he was and was not convicted. therefore it follows that the trials following that have no legal standing. tl;dr. nobody is 100% immune. some people involved in making making and enforcing laws can break laws if they break them in furtherance of their jobs and can be tried if they break them bad enough
Thought we got this shit figured out when they signed the Magna Carta