Trump Thread

[a completely inoffensive name]

Not saying that all public officials have unlimited immunity. Just the president does. My reference to Madison was about the notes he took at the Constitutional convention I would also think he wanted as far from a strong executive as possible.

To reiterate, my point of view is that the correct view of law which you describe applies when all parties respect the law. Presidents have ignored SCOTUS before. Trump is at the same level of popularity as Carter and HW Bush was this far into their first term.

This battle will increasingly shift from the realm of law to the realm of public opinion as his authoritarian tendencies become emboldened or he fears for his survival from persecution. Only overt violations of written law will convince an otherwise apathetic public of the true nature of where this game is leading us.

[Montmorency]

Not saying that all public officials have unlimited immunity. Just the president does. My reference to Madison was about the notes he took at the Constitutional convention I would also think he wanted as far from a strong executive as possible.

The President does, as do Congresspersons and Senators, as do federal judges...

But it falls in a specific scope: performance of official duties.

You can't just commit any crime you like and get away with it by dint of your office.

[Seamus Fermanagh]

The President does, as do Congresspersons and Senators, as do federal judges...

But it falls in a specific scope: performance of official duties.

You can't just commit any crime you like and get away with it by dint of your office.

Correct. Immunity is derived from the Article 1 Section 6. It provides immunity from arrest during legislative sessions or travel to/therefrom EXCEPT in cases of Treason, Felony, or Breach of the Peace. It also holds that a legislator cannot be questioned regarding comments/statements made on the debating floor except by colleagues also at that venue. This has been extended to all federal judges and elected executives, but it applies only during their term of office. In particular, Article 2 Section 4 goes on to talk about impeachment of the President or Vice President and other government officials for Treason, Bribery, or other high crimes and misdemeanors.


Bottom line. Immunity exists and is pretty broadly applicable WHILE IN OFFICE, but you cannot use that immunity to rob banks, kill people, or urinate on your neighbors. Upon removal from office by impeachment (or being between sessions in the case of Congress) you are no longer immune and they can arrest you as normal.

[Montmorency]

Correct. Immunity is derived from the Article 1 Section 6. It provides immunity from arrest during legislative sessions or travel to/therefrom EXCEPT in cases of Treason, Felony, or Breach of the Peace. It also holds that a legislator cannot be questioned regarding comments/statements made on the debating floor except by colleagues also at that venue. This has been extended to all federal judges and elected executives, but it applies only during their term of office. In particular, Article 2 Section 4 goes on to talk about impeachment of the President or Vice President and other government officials for Treason, Bribery, or other high crimes and misdemeanors.


Bottom line. Immunity exists and is pretty broadly applicable WHILE IN OFFICE, but you cannot use that immunity to rob banks, kill people, or urinate on your neighbors. Upon removal from office by impeachment (or being between sessions in the case of Congress) you are no longer immune and they can arrest you as normal.

As I will point out below, no form of immunity (except as argued for the chief executive since the 1970s) confers immunity from arrest and trial. It is only immunity from liability under specific conditions.

An interesting tidbit to embarrass positivists: Absolute immunity doctrine for POTUS (which has been in reference to court injunction or tort and not to criminal prosecution prior to Nixon) is half a fabrication from the recognition of executive privilege pervasive in all judicial-executive interactions and half a historical holdover of far more sweeping crown and sovereign immunity for the English monarch and their agents.

Beyond U.S. Constitution art. I, § 6

[Senators and Representatives] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

state and local legislators, judges, and prosecutors have been conferred absolute immunity by multiple Supreme Court affirmations without basis in any particular statute or the Constitution, but usually in "common-law and historical" considerations following 42 U.S.C. section 1983 (1871), a due-process and civil damages law that "says nothing about absolute immunity for anyone". And as I pointed out, immunity only extends to the designated tasks of the office (judicial, legislative, prosecutorial...), but not to simply any other function or action taken under color of holding the office, including administrative. Because "[i]t is important to constantly remember that absolute immunity is something that goes with the task, not with the office", executive officials can even receive absolute immunity when acting in judicial context, e.g. serving as a witness. It turns out judges have really liked to stake out absolute immunity as far as possible despite the lack of explicit statutory justification. Hell, the ruling in Baraka v. McGreevey (2007) even found that a governor could secure legislative immunity in budgetary decisions. How many "el-oh-el"s is that? It is not true in any case (except arguably for the President due to nothing more than the importance of the office) that conference of absolute immunity protects an office holder from any prosecution for the duration of their holding the office. All of this applies at least as much to civil liability as to criminal, by the way. Even the President can be held civilly liable, either for conduct prior to taking office (Jones vs. Clinton), or even for conduct during tenure of office (Nixon vs. Fitzgerald) as long as one separates the conduct of the POTUS and the conduct of the man or woman occupying the office of POTUS.

http://law.jrank.org/pages/10082/Sec...mmunities.html
https://digitalcommons.tourolaw.edu/...text=lawreview
https://nahmodlaw.com/2009/10/29/a-s...cope/#more-250
https://nahmodlaw.com/2013/02/20/a-s...tive-immunity/
https://nahmodlaw.com/2013/03/14/a-s...cial-immunity/
https://law.justia.com/constitution/...direction.html
https://nsuworks.nova.edu/cgi/viewco...t=ilsajournal/
https://www.acslaw.org/acsblog/after...or-prosecutors
https://www.lawfareblog.com/can-pres...ity-be-trumped

And of course of course, you don't even have our judicial branch without Marbury vs. Madison, a decision of unmatched potency despite not really deciding anything about the case at hand.

https://turtletalk.files.wordpress.c...bury-story.pdf

The point of this is not to argue that absolute immunity does not exist (whether it should exist is a separate discussion), but to point out that under a positivist rationale absolute immunity could not exist other than as specified for legislative action under the Constitution, and to emphasize that our entire legal framework could not exist if we abandoned context, common-law, history, and determinations of public interest, and limited ourselves only to the text at-hand.

This is also, of course, how courts can routinely act in favor of cops despite a mere "qualified" immunity for executive officers and agents, so flexibility and discretion has downsides. It is nevertheless the underpinning of law and process in our country.

I must not be expressing myself clearly since I understand the point you are both making and I agree with you both. but I am trying to express a concern I may have, probably unfounded, about the applicability of said law under certain terms and conditions. I just wanted to make a hysterical point about the fragility of rule of law in an unstable society.

This is why I shouldn't really be posting anymote.

I thought you were echoing the Trump admin's position that 'if the President does it, it's not illegal.' Beyond that, claiming that law in this country is written, interpreted, and applied positivistically is objectively incorrect.

Sorry for making you feel bad. I'm awfully good at that. :(

I think the culture of the USA is still too oriented on the rule of law to have things break down. It has been bent in the past, and likely will again, but has not broken.

It doesn't obviate the ideal fully, but we should be reminded that the US has never had a strict culture of "law and order", rather one of expedience and two tracks for the powerful and the weak. We're better than most, but :better" has a very limited virtue.

(Also, technically having any citizen protected by any form of official immunity at any time means we cannot possibly be "equal under the law", even formally. )

I think I got your point and it wasn't bad at all.
A law is only worth something if enough people enforce it.
Some say the second amendment clearly says "well-regulated militia" and other say it doesn't matter. The others clearly get to enforce their version of the law at the moment even if we assume it is not the one that was intended. In the same way certain other legal interpretations can be useless if a sufficient portion of the country just decides to ignore them and has the power to do so.

The one illegal thing (contempt of court?) Lincoln may have done re: suspending the privilege* of the writ of habeas corpus was ignoring Judge Taney in ex parte Merryman, except, like with Andrew Jackson and Worcester vs. Georgia, the court did not actually direct or enjoin any government action, so

The judicial branch has often taken pains to avoid stepping on the shoes of the other branches when it comes to injunctions.


*Historical tangent, but the Constitution specifies that the privilege of the writ of habeas corpus may be suspended. The writ of habeas corpus cannot be suspended, it seems. What this means is that unlawful arrest or detention is still unlawful under the suspension, you just don't have the privilege to pursue damages or recourse. Once the suspension has been lifted and the privilege rehabilitated, in theory one can pursue the issue in court. I can't find the article now, but one analysis found that the vast majority of arrests under Lincoln's policy were lawful, even if arguably the policy itself was an overreaction and not especially helpful towards maintenance of national security.


EDIT: I should have thought of this, but technically one of the worst aspects of Bush-era extradition policies and the Guantanamo Bay prison was that it involved a much more serious erosion of the habeas corpus right than under Lincoln, not least because it was not constrained by any specified exigent justification or limited in time and space. AFAIK we haven't recuperated habeas corpus so far in the Forever War. The Japanese-American internment during WW2 also involved the suspension of habeas corpus privilege; the American experience with habeas corpus thus fits into the familiar pattern of iterative escalation of security measures.

[Husar]

The one illegal thing (contempt of court?) Lincoln may have done re: suspending the privilege* of the writ of habeas corpus was ignoring Judge Taney in ex parte Merryman, except, like with Andrew Jackson and Worcester vs. Georgia, the court did not actually direct or enjoin any government action, so

The judicial branch has often taken pains to avoid stepping on the shoes of the other branches when it comes to injunctions.

I don't know why you bring up courts in reply to my post.
Courts can be changed: https://www.independent.co.uk/news/w...-a7140661.html

They only have power if the executive actually enforces their decisions. And failing that, the people in general.
The point was that with sufficient support in the populace and the executive, the rule of the law can be broken and Trump is moving somewhat in this direction by trying to discredit every institution that tries to block him.

Surely the USA are a more stable country than Turkey, but that's probably what the Romans thought, too. AND WHERE ARE THEY NOW? ;)

[Montmorency]

I don't know why you bring up courts in reply to my post.
Courts can be changed: https://www.independent.co.uk/news/w...-a7140661.html

They only have power if the executive actually enforces their decisions. And failing that, the people in general.
The point was that with sufficient support in the populace and the executive, the rule of the law can be broken and Trump is moving somewhat in this direction by trying to discredit every institution that tries to block him.

Surely the USA are a more stable country than Turkey, but that's probably what the Romans thought, too. AND WHERE ARE THEY NOW? ;)

That's what I was touching on in my response to your portion - executive power overriding subtle judicial arguments, and courts actively deferring to the executive in order to avoid a situation in which the executive have to choose between following onerous court orders, or explicitly rejecting them.

Sorry for rambling.

[Husar]

That's what I was touching on in my response to your portion - executive power overriding subtle judicial arguments, and courts actively deferring to the executive in order to avoid a situation in which the executive have to choose between following onerous court orders, or explicitly rejecting them.

Sorry for rambling.

What rambling? If I misread your post, it's your duty to point that out. How else would I learn?

In your example you seem to say Lincoln acted against a court order, but the court wasn't exactly interested in ordering him to do or not do anything anyway. Then you say the courts generally try not to interfere with the executive.

So, do you agree that it is possible that noone would stop Trump from ignoring the law and potentially the constitution?
It's not just about the courts, imagine a democratic congress were to impeach him, but his crazy cabinet would back him and order the police/military not to remove him. Would that result in a coup/civil war or endless debates until his term was over anyway? And what if he'd then declare a state of emergency and postponed the elections? Would all the California hippies pick up their AR-15s and march on Washington?

These are hypotheticals of course, but I'm not entirely sure how disinterested courts figure into this other than that they might make it even easier for him.

[Gilrandir]

Surely the USA are a more stable country than Turkey, but that's probably what the Romans thought, too. AND WHERE ARE THEY NOW? ;)

There was no Turkey back then. So your supposition is wrong.

[Husar]

There was no Turkey back then. So your supposition is wrong.

I think you misunderstand. I linked to an article about Erdogan to show what Trump could potentially do, but wanted to make sure people know that I don't think the US situation is exactly like the Turkish one. The last part was just a joke about the Romans probably having thought that their empire was more stable than it was, too.