If you hate the country theme song at the end of the podcast like I do, you can chop the last 0:54 minutes from the end. You might get the first few twangy chords and lame cuntry vocals (I still scramble to fast forward when they are wrapping it up), but you won't be subject to the entire cleatus serenade with each episode.
George…you’re a genius. Your flip-the-script argument really helped me…uh…calm down. And dislike the conservative justices less. They are laying the groundwork to protect presidents like Joe Biden and pretty much every other president in American history except Donald Trump.
if it is imperative for a sitting President to be protected, vis a vis immunity, from abusive prosecution by a future President, then why shouldn't SCOTUS justices, members of Congress, Cabinet members, or even other appointees/employees of the Executive branch, also be protective against abusive prosecution?
If Obama could be at risk of prosecution for drone strikes, surely the Joint Chief of Staff, head of DoD, CIA, etc would be even more complicit.
SCOTUS justices and Cabinet members, like the President, are also subject to Impeachment. Doesn't that imply that they too are immune from prosecution, prior to impeachment, from current and future Presidents, as the case might be.
Is Senator Bob Mendez entitled to make a claim for immunity from "abusive" prosecution?
Honestly, rather than dealing productively with the real risks of "abusive prosecutions", some members of this Court seem prepared to remedying it with blanket immunity.
Thanks so much for this. I'm an artist, not a lawyer so it is incredibly helpful to have someone talk about what is going on legally with Trump in ways that I can understand. I also found the music at the end a great way to wrap up the interview. While it's hard not to freak out about what's going on, remaining calm and informed helps bring the temperature down.
They purposely set up the question that they wanted to answer. No one should be surprised when they refuse at all to address what happens when a president acts outside his scope of authority to perform illegal acts. This is all a setup by them to provide a ruling that doesn’t really change anything but appears to help Trump. It is disgusting, and they are the most vapid, transparent, easily purchased Judges out there
How appreciative I am of George's reasoned analysis concerning the Presidential Immunity argument before the Supreme Court. He puts me at ease in the faith that our judicial system still holds as a bulwark against tyranny.
I respectfully disagree with this headline, and may or may not listen to it. I’ve had it with arguments that we need to “calm down”. Some of these same kinds of commentariats spoke the same sort of words after 2016’s election of a fascist cloaked in decaying profit-mad capitalism clothing.
However, if the authors intend to encourage US to not panic, but to continue organizing opposition to the Roger Taney-like four Trump sycophantic Justices: Clarence, Sam, Bret, and Neil, then I’m all in.
We all need to revisit, contemplate, understand and take unprecedented action about what Ben F. warned at the beginning of our experiment in democracy, “A republic, madame, if you can keep it.”
Anyone who doesn’t get Ben said then, has thrown-in the towel. We’re not playing games anymore.
Where are the SCOTUS PROTESTERS? Why aren’t there Americans protesting in front of the SUPREME COURT BUILDING this morning? Thousands? Are you asleep?
What happened at SCOTUS this week is as bad as what’s going on in GAZA.
We must protest like college & university students are protesting today. Don’t panic. ORGANIZE, PROTEST, VOTE !
I think we'll all be better able to organize, protest, and vote if we understand what is happening. Being calm, persistent, and determined to rid ourselves of Trump and MAGA will take lots of time and energy. We can't allow ourselves the luxury of emotional and psychic burnout. This is too important for that.
Honestly I feel that George could have easily retained 90% of his commentary unchanged yet decide to arrive at a completely opposite and pessimistic opinion…
Although the case is named Trump V. United States, the question presented to the SC is generic, referring only to “whether a former president enjoy[s] presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
So unless the SC can elect to not answer the question provided and instead restrict the scope of their answer to very specific acts of the very specific president that has led to this case, then they’re surely going to fudge it, right?
I can’t see them wanting to get into the business of clarifying / defining what “official acts” are, either generally or specifically (the former I can’t see them wanting to take responsibility for, and the latter risks setting a precedent for a patchwork of individual future cases coming to them).
Surely it’s in their interest to confirm that it’s the responsibility of Congress to decide what acts are official / not offical, and exercise its constitutional power of impeachment accordingly (with referral to the Justice Dept for prosecution if believed to be criminal).
I think the Trump lawyer is smarter than he is being given credit for, constantly referring to the impeachment process, and that every outlandish question he is asked (“could a president assassinate his rival?!”) in fact strengthens his argument that the SC should do nothing except confirm the process that should take place before prosecution of a former president can occur. Even George should like this outcome because it would help protect “good” former presidents from “bad” current Attorneys General :)
Basically, I wouldn’t be surprised if the only concrete judgement of the SC is to effectively confirm that the Justice Dept cannot prosecute former presidents for crimes committed whilst in office unless they were successfully impeached by Congress and referred for prosecution. I.e. Trump’s immune.
Please let me know if anything I’ve said is factually wrong, highly unlikely, or too cynical to be taken seriously…
TL;DR - I wish I could be as optimistic as George seems to be on this, but I’m really struggling here…
C'mon George. You know the DC Court got it right and the conservative SCOTUS justices are itching for a way to undo what they know in their hearts to be proper jurisprudence in service to their political views. I hope they're right. But if they come back with some weird test that saves Trump, I hope you'll do what JVL did today and reconsider your priors.
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*
It sounds like George think the SCOTUS is trying to pre-emptively "ammend" the Constitution to circumscribe presidential immunity for future cases.
Instead of worrying about hypothetical abuse of power by a future Trump presidency, I would suggest the SCOTUS wait until future prosecutorial abuse becomes reality before stake a claim on what the Constitution says about presidential immunity.
I agree. Seems to me one important way to deter future corruption and abuse by the justice department is to prevent bad people from getting into power in the first place. Such as by prosecuting former officials who were corrupt or abused their power — including people who used to be president of the United States.
I understand trying to "future-proof" institutions, but literally ignoring the exact case before your for over two hours and "stress-testing" was crap. They should have at least given a couple minutes of time to the case in front of them: allowing the evidence for/against the person who used the power of his office to attempt to overthrow the will of the people in the 2020 election to prevent the peaceful transfer of power for his personal gain. We watched a 7-alarm fire before the last inauguration and have spent the last 3+ years watching the "firemen" standing around discussing whether to use city water or the water in a pump truck to put it out. There will be absolutely nothing left to salvage by election time.
I will reiterate. The voters DID decide back in 2020, and if there were no repercussions for someone ignoring the results then, why would anyone expect this election to be different?
"Here's a hypothetical for the SCOTUS: A President creates new Supreme Court vacancies by executing you and his opponents in the Senate and Congress before they can impeach him. Is he immune from prosecution?"
If you hate the country theme song at the end of the podcast like I do, you can chop the last 0:54 minutes from the end. You might get the first few twangy chords and lame cuntry vocals (I still scramble to fast forward when they are wrapping it up), but you won't be subject to the entire cleatus serenade with each episode.
George…you’re a genius. Your flip-the-script argument really helped me…uh…calm down. And dislike the conservative justices less. They are laying the groundwork to protect presidents like Joe Biden and pretty much every other president in American history except Donald Trump.
Wait...
if it is imperative for a sitting President to be protected, vis a vis immunity, from abusive prosecution by a future President, then why shouldn't SCOTUS justices, members of Congress, Cabinet members, or even other appointees/employees of the Executive branch, also be protective against abusive prosecution?
If Obama could be at risk of prosecution for drone strikes, surely the Joint Chief of Staff, head of DoD, CIA, etc would be even more complicit.
SCOTUS justices and Cabinet members, like the President, are also subject to Impeachment. Doesn't that imply that they too are immune from prosecution, prior to impeachment, from current and future Presidents, as the case might be.
Is Senator Bob Mendez entitled to make a claim for immunity from "abusive" prosecution?
Honestly, rather than dealing productively with the real risks of "abusive prosecutions", some members of this Court seem prepared to remedying it with blanket immunity.
I wish I could share Conway's optimism.
But I'll wait for the Court's decision before believing that the majority is acting in anything other than bad faith.
Thanks so much for this. I'm an artist, not a lawyer so it is incredibly helpful to have someone talk about what is going on legally with Trump in ways that I can understand. I also found the music at the end a great way to wrap up the interview. While it's hard not to freak out about what's going on, remaining calm and informed helps bring the temperature down.
They purposely set up the question that they wanted to answer. No one should be surprised when they refuse at all to address what happens when a president acts outside his scope of authority to perform illegal acts. This is all a setup by them to provide a ruling that doesn’t really change anything but appears to help Trump. It is disgusting, and they are the most vapid, transparent, easily purchased Judges out there
How appreciative I am of George's reasoned analysis concerning the Presidential Immunity argument before the Supreme Court. He puts me at ease in the faith that our judicial system still holds as a bulwark against tyranny.
I respectfully disagree with this headline, and may or may not listen to it. I’ve had it with arguments that we need to “calm down”. Some of these same kinds of commentariats spoke the same sort of words after 2016’s election of a fascist cloaked in decaying profit-mad capitalism clothing.
However, if the authors intend to encourage US to not panic, but to continue organizing opposition to the Roger Taney-like four Trump sycophantic Justices: Clarence, Sam, Bret, and Neil, then I’m all in.
We all need to revisit, contemplate, understand and take unprecedented action about what Ben F. warned at the beginning of our experiment in democracy, “A republic, madame, if you can keep it.”
Anyone who doesn’t get Ben said then, has thrown-in the towel. We’re not playing games anymore.
Where are the SCOTUS PROTESTERS? Why aren’t there Americans protesting in front of the SUPREME COURT BUILDING this morning? Thousands? Are you asleep?
What happened at SCOTUS this week is as bad as what’s going on in GAZA.
We must protest like college & university students are protesting today. Don’t panic. ORGANIZE, PROTEST, VOTE !
I think we'll all be better able to organize, protest, and vote if we understand what is happening. Being calm, persistent, and determined to rid ourselves of Trump and MAGA will take lots of time and energy. We can't allow ourselves the luxury of emotional and psychic burnout. This is too important for that.
Shamelessness as a superpower. Who could play that guy in an MCU film ?
Honestly I feel that George could have easily retained 90% of his commentary unchanged yet decide to arrive at a completely opposite and pessimistic opinion…
Although the case is named Trump V. United States, the question presented to the SC is generic, referring only to “whether a former president enjoy[s] presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
So unless the SC can elect to not answer the question provided and instead restrict the scope of their answer to very specific acts of the very specific president that has led to this case, then they’re surely going to fudge it, right?
I can’t see them wanting to get into the business of clarifying / defining what “official acts” are, either generally or specifically (the former I can’t see them wanting to take responsibility for, and the latter risks setting a precedent for a patchwork of individual future cases coming to them).
Surely it’s in their interest to confirm that it’s the responsibility of Congress to decide what acts are official / not offical, and exercise its constitutional power of impeachment accordingly (with referral to the Justice Dept for prosecution if believed to be criminal).
I think the Trump lawyer is smarter than he is being given credit for, constantly referring to the impeachment process, and that every outlandish question he is asked (“could a president assassinate his rival?!”) in fact strengthens his argument that the SC should do nothing except confirm the process that should take place before prosecution of a former president can occur. Even George should like this outcome because it would help protect “good” former presidents from “bad” current Attorneys General :)
Basically, I wouldn’t be surprised if the only concrete judgement of the SC is to effectively confirm that the Justice Dept cannot prosecute former presidents for crimes committed whilst in office unless they were successfully impeached by Congress and referred for prosecution. I.e. Trump’s immune.
Please let me know if anything I’ve said is factually wrong, highly unlikely, or too cynical to be taken seriously…
TL;DR - I wish I could be as optimistic as George seems to be on this, but I’m really struggling here…
C'mon George. You know the DC Court got it right and the conservative SCOTUS justices are itching for a way to undo what they know in their hearts to be proper jurisprudence in service to their political views. I hope they're right. But if they come back with some weird test that saves Trump, I hope you'll do what JVL did today and reconsider your priors.
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*
Sorry, but George seems to living in denial here.
It sounds like George think the SCOTUS is trying to pre-emptively "ammend" the Constitution to circumscribe presidential immunity for future cases.
Instead of worrying about hypothetical abuse of power by a future Trump presidency, I would suggest the SCOTUS wait until future prosecutorial abuse becomes reality before stake a claim on what the Constitution says about presidential immunity.
I agree. Seems to me one important way to deter future corruption and abuse by the justice department is to prevent bad people from getting into power in the first place. Such as by prosecuting former officials who were corrupt or abused their power — including people who used to be president of the United States.
Feeling a bit better now-thanks for the background!
I understand trying to "future-proof" institutions, but literally ignoring the exact case before your for over two hours and "stress-testing" was crap. They should have at least given a couple minutes of time to the case in front of them: allowing the evidence for/against the person who used the power of his office to attempt to overthrow the will of the people in the 2020 election to prevent the peaceful transfer of power for his personal gain. We watched a 7-alarm fire before the last inauguration and have spent the last 3+ years watching the "firemen" standing around discussing whether to use city water or the water in a pump truck to put it out. There will be absolutely nothing left to salvage by election time.
I will reiterate. The voters DID decide back in 2020, and if there were no repercussions for someone ignoring the results then, why would anyone expect this election to be different?
"Here's a hypothetical for the SCOTUS: A President creates new Supreme Court vacancies by executing you and his opponents in the Senate and Congress before they can impeach him. Is he immune from prosecution?"
https://x.com/Photoonist/status/1783725827882135565
Please share, retweet, etc. This is a question worth asking.
<insert Ron Burgundy gif> “Well that escalated quickly.”