Normal criminal prosecution is not a good check on a president's authority because the president indirectly supervises the prosecutors. So as a system to ensure "equality in the eyes of the law" the criminal justice system already is not very functional in anything like real time.
The DOJ threat of criminal prosecution only becomes functional when the president becomes a private person, at which point the president no longer has the ability to act in an official capacity anyway.
As for SEAL Team 6, they have a "duty to disobey" unlawful orders[1]-- which every member of the team probably knows off the top of their heads-- and which is a much more effective real-time check on a president's authority.
I’m not a NSW operator but I was an operator for HVT ground and helicopter assault missions in Iraq with the teams.
There are a non trivial subset of Tier1 operators who would absolutely take whatever mission they were given by the president and do not view their role as being political
Yes it’s in the training, but it’s not something that is expected because operations like this touch hundreds of people who ARENT operators (generals, joint staff, analysis, strategic planners etc…) that teams rely on to wave that flag through the targeting and JPOE process
> As for SEAL Team 6, they have a "duty to disobey" unlawful orders[1]-- which every member of the team probably knows off the top of their heads-- and which is a much more effective real-time check on a president's authority.
This is an incredibly flimsy check on power:
- What if the president uses a drone strike instead?
- What if the president staffs the military (and seal team 6) with loyalists?
- What if the president uses this power to threaten and extort officials into doing his bidding?
>As for SEAL Team 6, they have a "duty to disobey" unlawful orders[1]-- which every member of the team probably knows off the top of their heads-- and which is a much more effective real-time check on a president's authority.
Now, let's play that out in real time:
Donald Trump: please kill person XYZ.
Seal Team 6: Uh, no sir, that's illegal. We cannot do that.
Donald Trump: the courts say I have immunity, this is an official act. Person XYZ is a threat to our country, and under the constitution I'm allowed to defend this country against all enemies, foreign and domestic. This person is a domestic enemy. Kill them.
Seal Team 6: Uh, no sir, we can't do that.
Donald Trump: You're fired. I'm replacing you with someone that can do what I tell them.
Seal team 6: Ok, we'll kill person XYZ.
And the courts will have no problem with that, as per their ruling.
The office of the presidency is certainly not equal under the law to everyone else's professional position. The president is in charge of the military, for one thing, and can act in the interest of national security.
It's not about what the president deserves, but what the people deserve. The founders (after overthrowing one government, forming another, deciding it failed) were tasked with forming a government that can "long endure"... with structuring an office that can both facilitate liberty, but also contend with major enemies foreign (and domestic). The scale of the question is beyond one life or death, but operates on centuries-long timelines. It deals with the equities that face millions of people, not merely the single person holding office.
This is quite common. British parliamentary systems offer immunity to members in their official acts.
Why?
Because, and this is purely hypothetical (lol), an opponent could try and convict politicians with spurious charges to get them out of power.
Singapore’s ruling party loves this tactic. Political opponent is charged with defamation, and if fined more than $5,000, they are no longer eligible to run for office.
It’s a commonly used political weapon which is why most democracies offer immunity.
Absolute immunity does not make for a credible juridical system. While most democracies have some sort of restrictions, a full out absolutely immunity is not very common.
Because the government kills people all the time and destroys their lives and businesses. And because nobody is combing through the criminal law books trying to convict the average person for something.
I mean, the former governor of New York just said the New York prosecution against Trump wouldn’t have been brought against anyone else.
175.10 has been used before. There are many things which are firsts, and a lot of shaky legal theory. My I'd put 10 to 1 odds this gets overturned, and 5 to 1 odds it happens before it gets to the supreme court.
1. Usually they charge the predicate crime.
2. FECA has never been used as a predicate crime.
3. I don't believe a campaign finance reporting violation has been tried as election interference.
4. There are a lot of unsettled questions about these laws like can 175.10 point to a federal crime? Is hasn't been prosecuted that way before. Can it point to FECA despite FECA's broad preemption?
The examples in the article tie the business records crime to another crime that’s at least charged, things like insurance fraud, failing to pay taxes, fraudulently obtaining government benefits, etc. Remarkably, prosecutors couldn’t find evidence of “Kinpin” Trump doing any of those things.
The problem with the Trump prosecution is that it is predicated on an uncharged and rarely used election law crime, and that in turn is predicated on an uncharged federal campaign finance crime. It’s a double bank shot. It’s fair to say that prosecutors didn’t have occasion to charge someone else with a documents crime in connection with an election law crime. But there’s not a single example in your list where prosecutors upgraded the documents crime to a felony based on a chain of two other, uncharged, crimes that relate to far-flung areas of the law.
On top of that, the uncharged predicate crimes have been interpreted in a sweeping way. According to New York prosecutors, agreeing with others to suppress bad news during a campaign is criminal election interference, so long as it can be connected to any other “unlawful” act.
Then the third piece, the unlawful act underpinning the election interference charge, is a federal campaign finance violation that SDNY declined to prosecute, and which New York couldn’t have brought against Trump.
There’s the statute of limitations and jurisdictional issues: none of the claims could have been brought by themselves. There’s the due process issue: because they were not charged, Trump’s counsel had no way to challenge the novel interpretations of the election interference and election law charges.
Cuomo (the former NY AG) and Honig (a former federal prosecutor) are correct. A case based on such an elaborate legal theory with as much hair on it as this one had would not have been brought unless the defendant was Donald Trump.
This case was architected by Carey Dunne, my former boss at Davis Polk. If this case had instead been brought against a gang member, him and folks at Davis Polk would be lining up to do the appeal. But instead they have abandoned the principles of the legal profession and are looking the other way out of class loyalty. It’s shameful and a stain on the profession.
Ultimately the prosecution proved Trump’s indictment of the professional managerial class. They cannot be trusted to uphold the principles of their professions, and will abuse the authority those professions confer to advance their own ideological agendas.
> I mean, the former governor of New York just said the New York prosecution against Trump wouldn’t have been brought against anyone else.
Trump is flagrantly corrupt and coordinates crime through lackeys, many of which have been convicted of felonies. No, you don't catch old kingpins on the stuff you get everybody else with. There's definitely a two-tier justice system going on, but it bends in Trump's favor at every turn.
“Trump actually did all these bad things! But we can’t prove any of them, so we’ll prosecute him for influencing an election by covering up an affair after he already won the election. Don’t sweat the details, you gotta get creative with these kingpins.”
This is persuasive to nobody that doesn’t start from the assumption Trump is a criminal. The irony is that I used to share that assumption, because I’m a pretty trusting person. But after almost eight years of the smartest lawyers in the country going after him, I’m not so sure. My former boss at a white shoe law firm in New York helped engineer the New York case, and it’s the same kind of contrived legal theory the firm would use to help a corporate client make it seem like all their income was earned in Bermuda. Utterly unpersuasive.
Well, he hasn’t argued that he’s innocent; that the evidence is fabricated. The evidence is stuff he tweets. He argues that the system allows these mean people too much time to talk and scheme.
As a Canadian who keeps up on the news but has no skin in the game, from up here it does look petty when after seemingly hundreds of unsuccessful attempts to prosecute Trump, their “we got him now” case amounts to “he expensed an invoice from his lawyer to a business instead of paying it personally”.
That's because the things they can't get him on (yet) include inciting violence intending to prevent the lawful transition of power (aka a coup attempt) -- because the judge is deferring the case past the election -- and influencing states to cast votes in the electoral college against what their people voted for -- because the case is on hold pending investigation of the prosecutor. Both of those have already resulted in convictions of multiple Trump staffers; Trump himself has managed to delay justice in both of those more serious cases.
There is a reason they got Al Capone on tax evasion, and it wasn't because that was the worst thing he did. Crime bosses are notoriously slippery.
Because average citizens and politicians don't generally attract (unceasing) partisan lawfare that is tantamount to systemic corruption.
When prosecutors campaign on pursuing an individual, when such efforts are multipolar and unending, and when the sum effort looks corrupt to a large portion of the country, then it seems obvious to suggest that outrage at a resultant SC ruling, which would not have otherwise come under consideration, is crying over one's self-inflicted medicine.
I don't think that it is healthy that this was put to the SC.
But it was absolutely inevitable given the various prosecutorial efforts and the norm breaking they represent. Even ignoring the open political corruption, and lies, involving them. Though, these aspects aren't necessary to ignore.
In short, breaking norms to pursue Trump was worth the squeeze for them. They were squeezed. That's it.
Assuming that these aren't crocodile tears over a ruling that will protect others from actual accused crimes of the past, or what might come in the future. That these prosecutions weren't specifically brought to force this result. Which is entirely possible. Certainly, such a benefit will be had.
If I understand this correctly, the core effect of this is to essentially transfer the gateway through which it is possible to prosecute a president from any AG's office to Congress.
I suspect which will serve to further entrench establishment power, of which Biden's camp is a part. Presidents within Congressional graces will be effectively immune, crime or no crime. Presidents outside of them may not be so much.
Whomever lived through 2016-2020 and thinks that Trump will have some kind of Congressional carte blanche either hasn't thought this through or is being deceptive.
Compare the improbability of Trump being able to swerve out of his lane, as far as Congress is concerned, and what Obama was able to legally get away with without stirring Congress.
Now predicated on the precedent of Obama's extrajudicial action, Trump may have been able to carry out extrajudicial acts during his term. But no one who was watching thinks that anything without a precedent would have resulted in anything except another Trump impeachment.
Did you really refer to charging Trump for several felonies for which there is abundant evidence, "lawfare?" That is a weird way to say "consequences for breaking the law."
Then I guess Trump has only been successfully prosecuted (so far) for 11.33 days' actions of his presidency. That's a lot of days to go. I can see why he needs immunity.
Actually based on that logic, we all need immunity! Quick, let's get rid of laws entirely.
Carving out some special protection strikes at the heart of the idea that everyone is equal in the eyes of the law.