Trump Thread

[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.