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David Link's avatar

This is a respectable opinion piece, but to me it is not a persuasive one.

A more persuasive argument would have more fully thought through the consequences for an opposite majority opinion -- something the Chief Justice's majority opinion did, and the dissents really, did not.

The first thing to point out is that the fact that international law is different fails to be persuasive because there isn't an international constitution. And other countries with constitutions don't have ours. The Court very carefully considered what our constitution says, and how it is structured, and while both dissents see things differently, I think the fact that the president is constitutionally the only branch of government assigned to one person is overwhelmingly important to this case.

The Court's discussion of the problem with presidential motives follows from that. As a singular focus of power, the President is a natural focus of prosecutors, and speculating about presidential motives is one of the biggest problems the Court sees, since motives are so obscure, complicated and multifactorial. This is just the thing partisans -- including prosecutorial partisans -- can and do take advantage of in an enormous number of situations including, in part, the Trump prosecution in this case. It doesn't take any imagination to wonder if a Republican led Department of Justice would file revenge cases against President Biden, since that's just what the Republicans are promising, and already trying to do. The dissents were not troubled by this Hatfields and McCoys scenario, but I certainly am.

Taking motive off the table has its downside, since a guilty mind (called mens rea in the law) is an essential element of criminal behavior. Yes, that means that only the most extreme presidential actions, where motive is obvious, could be considered for post-presidential allegations. But it shouldn't be forgotten that the reason we've never faced this question before is that only one President ever has so obviously and publicly engaged in conduct that might meet the Court's bar.

Prof. Ginsberg is fair in including the staff of the President (or his co-conspirators) would also be in the hot seat, and that is as it should be. But what about the offending President?

The parade of horribles that keeps getting brought out is a truly scary phantasm, but if the majority of Americans again choose Trump or someone as bad. . . well, the Constitution doesn't tell anyone who to vote for.

More important to me, if one of Prof. Ginsberg's scenarios were to take place again, note that as the conduct gets worse, the chance of impeachment get better. As we've learned, impeachment of the President is a political exercise, but even partisan politics will have its limits. A President unilaterally cutting off arms to Ukraine, recognizing Russia's claim to the Donbas, and taking money for it? I'd think just the first two would be enough even for today's GOP.

I might be wrong about that, but I don't think I'm wrong about how far outside the lines set by the Court nearly all elected presidents would stray.

Finally, it's worthwhile to consider this case does not stand alone. The Court this term clarified (a bit) the problems with the actions Donald Trump took, and it's true that it recognized an immunity that had never been imagined because it never needed to be. But the Court also cut back on many of the excesses of the Executive's authority over his regulatory power, at least as big a story. That looks The Court this term was very interested in the Constitution's balance of powers overall, with the Executive Branch as Exhibit A. That, I think, is by far the most important context for understanding this term. The Court is developing a better understanding of presidential power because Congress has so throughly abandoned its job, which the Founders thought was so central they put it first in the Constitution. Nature isn't the only thing that abhors a vacuum, and as long as Congress continues its juvenile political hijinks, the Executive has taken over Job One. The Court's job is to keep an eye on that kind of thing, and has done it well this term.

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PSW's avatar

Oh no the sky is falling! Will Biden now have Trump assassinated?

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