Comment on Supreme Court appears likely to side with Trump on some presidential immunity
PeepinGoodArgs@reddthat.com 7 months ago
Dang…that’s a really good analysis of the arguments.
Justice Brett Kavanaugh appeared sympathetic to the former president’s argument that criminal statutes do not apply to the president unless they say so specifically. He told Dreeben that it’s a “serious constitutional question whether a criminal statute can apply to the president’s criminal acts.”
Kavanaugh – who served as a deputy to Ken Starr during his investigation of then-President Bill Clinton – cited the Supreme Court’s 1988 decision in Morrison v. Olson, upholding the constitutionality of the independent counsel statute, as “one of the Court’s biggest mistakes” because it “hampered” presidential administrations. When former presidents are subjected to prosecution, Kavanaugh said, “history tells us it’s not going to stop.”
I don’t have anything better to do (yay for being off work today), so I want to dig into this.
Morrison v. Olson basically upheld the constitutionality of the Independent Counsel Act, which was used to appoint Alexia Morrison to investigate and prosecute any federal violations Theodore Olson, then Assistant Attorney General, had committed during an investigation of the EPA. Upholding it meant that Congress could appoint an independent counsel “to investigate and prosecute crimes by high-ranking members of the executive branch. Unlike “the special counsel,” the independent counsel could not be removed by the attorney general (except within a narrow set of circumstances)”^[TeachingAmericanHistory.org]. In other words, the judicial branch could appoint someone with executive power to investigate and prosecute executive members.
In short, Kavanaugh thinks this ruling violates the separation of powers and, as a result, has reigned in the range of actions presidential administrations may have taken in the past. To be fair to him, the Independent Counsel act was used to prosecute government officials in the Watergate Scandal, the Iran-Contra affairs, and the White scandal^[The Efficacy of the Independent Counsel Law: Holding Presidents to Account from Nixon to Trump to Account from Nixon to Trump]. So, it’s been used, and Kavanaugh’s concern is legitimate.
And that concern is relevant to this Trump’s immunity cases because, if they say that Trump isn’t immune from his allegedly criminal acts, then it with further constrain presidential administrations. The reductio ab absurdum argument is that of course presidents should be held accountable for their criminal actions. Duh! The more intellectually honest consideration is that, while president’s should indeed be held accountable for their criminal actions, allowing Trump to be held accountable would encourage investigating and prosecuting the criminal actions of future presidents as yet another tool for political dominance.
Fundamentally, I think Kavanaugh’s concern is less about Trump’s accountability specifically than the functioning of American democracy generally. Having worked through this myself, I better understand where he’s coming from, but…Trump needs to face consequences for what he did as president. IMO, if American democracy can’t function if it’s highest political offices can’t engage in criminal behavior, then American democracy shouldn’t function. Better a dysfunctional democracy with accountability than it’s illusion without.
wintermute_oregon@lemm.ee 7 months ago
This is going to be a very important ruling that many people are going to turn partisan.
I believe it was Kavanaugh who asked about Obama and drones. That was a really good question.
I don’t like the term immunity but I get it. We can’t go after the president for everything they do as it will turn into a clusterfuck really fast.
This is one of those days I am glad I am not a member of SCOTUS or someone who has to deal with trying to figure this mess out.
BobaFuttbucker@reddthat.com 7 months ago
I dunno, the way I see it we put people in power with our vote. The President is our employee in a way, and while they are privy to classified details and can’t be completely transparent about everything, the idea that a President has immunity from crimes is a very dangerous road.
From the hearing yesterday it sounds like Trump’s own attorneys concede that the immunity is not absolute. So where is the line drawn? Can Biden put a hit out on Trump and be immune from facing consequences? Can an outgoing president preemptively pardon themselves from all wrongdoing? If so, then how do we hold them accountable to do their job and not just benefit themselves while they’re there?
These concerns were also raised in the hearings yesterday but I did not hear any satisfactory answer.
If the immunity is not absolute then what is the limit?
wintermute_oregon@lemm.ee 7 months ago
and the answer won’t come from this decision. This will be a narrow decision I suspect. The court will keep it very focused for the reasons you listed above
BobaFuttbucker@reddthat.com 7 months ago
It’s not really surprising how each justice will vote. They’re not good at masking their stance based on the questions they ask.