I’m not an attorney, but I’d like to know why the focus on “official acts” vs “unofficial acts” and not “lawful” vs “unlawful” acts. It seems to me that a President could order an unlawful act under the auspices of the Presidency and it may be an official act AND unlawful. Ordering a coup, for instance. Or ordering the assassination of a…
I’m not an attorney, but I’d like to know why the focus on “official acts” vs “unofficial acts” and not “lawful” vs “unlawful” acts. It seems to me that a President could order an unlawful act under the auspices of the Presidency and it may be an official act AND unlawful. Ordering a coup, for instance. Or ordering the assassination of a political rival could be done as an official act but it would still be illegal. When viewed through that lens, to my unlawyerly brain, the distinction between official and unofficial becomes less relevant.
It’s a good point but I think the lawful vs unlawful argument is tricky given that we have historically accepted (in some cases maybe supported) presidents exercising acts which if carried out by a private individual would certainly attract prosecution. An extreme example would be a president ordering or authorising a targeted overseas bombing raid in which innocent civilians are accidentally injured or killed. We may criticise presidents for this but they aren’t prosecuted.
I thought about that. But under the Constitution wouldn’t that be a lawful act as Commander in Chief? I know it isn’t airtight, but it geels more solid than “official” vs “unoffficial”.
I think you’re correct, and my example was poorly chosen. I was essentially trying to provide an extreme example of an act that a president may lawfully perform but which, if performed by the general public, would be unlawful.
The U.S. Code often describes laws in the form of “any person who does ABC shall be punished as described in section XYZ”, but does often specifically exclude individuals who fall under various criteria.
So if it’s possible to determine whether particular laws do / don’t apply to presidents, then I agree with your original point :)
I am sceptical though as to the practical application of this given what recently happened in Colorado in which the District and State Supreme Courts arrived at different interpretations of the term “office holder” the definition of which determined whether it applied to a president or not. And that was just a single section of the Fourteenth Amendment…
But overall I think I agree with you now that establishing legality of presidential acts would be the more relevant approach… unless of course SCOTUS torpedoes this entire discussion by ruling that the years a president is in office are forever protected from prosecution :)
Thanks buddy! I enjoy refining my thinking through dialogue too! The huge variation of opinions / interpretations / predictions across just the Bulwark team alone is wild. That’s the nature of being in uncharted territory I guess…. *gulp*
I’m not an attorney, but I’d like to know why the focus on “official acts” vs “unofficial acts” and not “lawful” vs “unlawful” acts. It seems to me that a President could order an unlawful act under the auspices of the Presidency and it may be an official act AND unlawful. Ordering a coup, for instance. Or ordering the assassination of a political rival could be done as an official act but it would still be illegal. When viewed through that lens, to my unlawyerly brain, the distinction between official and unofficial becomes less relevant.
Very good distinction you make here!
It’s a good point but I think the lawful vs unlawful argument is tricky given that we have historically accepted (in some cases maybe supported) presidents exercising acts which if carried out by a private individual would certainly attract prosecution. An extreme example would be a president ordering or authorising a targeted overseas bombing raid in which innocent civilians are accidentally injured or killed. We may criticise presidents for this but they aren’t prosecuted.
I thought about that. But under the Constitution wouldn’t that be a lawful act as Commander in Chief? I know it isn’t airtight, but it geels more solid than “official” vs “unoffficial”.
I think you’re correct, and my example was poorly chosen. I was essentially trying to provide an extreme example of an act that a president may lawfully perform but which, if performed by the general public, would be unlawful.
The U.S. Code often describes laws in the form of “any person who does ABC shall be punished as described in section XYZ”, but does often specifically exclude individuals who fall under various criteria.
So if it’s possible to determine whether particular laws do / don’t apply to presidents, then I agree with your original point :)
I am sceptical though as to the practical application of this given what recently happened in Colorado in which the District and State Supreme Courts arrived at different interpretations of the term “office holder” the definition of which determined whether it applied to a president or not. And that was just a single section of the Fourteenth Amendment…
But overall I think I agree with you now that establishing legality of presidential acts would be the more relevant approach… unless of course SCOTUS torpedoes this entire discussion by ruling that the years a president is in office are forever protected from prosecution :)
I appreciate the discourse here. I am not expert in this area and am open to being proven wildly wrong.
Thanks buddy! I enjoy refining my thinking through dialogue too! The huge variation of opinions / interpretations / predictions across just the Bulwark team alone is wild. That’s the nature of being in uncharted territory I guess…. *gulp*