Supreme Court justices all agree a president is NOT immune for crimes committed as president - Sotomeyer did NOT really say a president can assassinate rivals - details for lower courts to unfold soon
The Supreme Court decision doesn't mean what the click bait headlines say. Sotomeyer’s dissenting opinion was part of a slippery slope argument taken out of context and very much misunderstood.
First a point of clarity, it is only about whether a president can be immune for things he did as president.
The immunity definitely doesn’t extend to things a presidential candidate or retired president does. So
classified documents case is not affected
[happened after Trumps term ended and the offence is retaining classifired documents, it’s not important how he got them]New York real estate case and the hush money case are not affected - except for evidence they might use from when Trump was in office as president - and appeals on that basis likely to fail.
[happened before Trump was president]
For the Jan 06 case, it is not as simple an argument as it seems because of the separation of powers, it is about what the relative powers are of the executive (led by president), the legislature (Congress) and the Judiciary (justices and judges). It is also a question that has never been looked at before in the Supreme Court. So it's not that surprising that the Supreme Court took it on.
We know the president is “above the law” in one respect. The constitution gives him the right to pardon any criminal accused of a federal crime, and this is something that everyone agrees is a core power that the Judiciary can’t touch, because this much is written into the constitution.
On the other hand it is also clear that a former president can be found guilty of a crime committed after he left office, as it’s already happened with Trump. The impeachment clause also makes it clear that a president can be convicted of a crime he conducted in office at least if he is impeached first. Then in this new ruling the Supreme Court justices do all agree that he can be convicted of a crime conducted when he was in office, even if not impeached.
Let’s start with the easy stuff, the things that all the Supreme Court justices agreed on. This is from reading the legal decision itself and the analysis of it by legal experts. Details later on this page.
All the supreme court justices agreed that
a president can’t be prosecuted for pardoning a criminal from a federal crime because the pardon power is written into the constitution as a power of the president rather than the judiciary
ArtII.S2.C1.3.1 Overview of Pardon Powera president CAN be prosecuted if he accepts bribes in exchange for pardon.
They all agreed on this though the majority opinion is very unclear on HOW a president can be prosecuted for taking a bribe for a pardon. But his immunity for prosecution for pardon doesn’t extend to an immunity for prosecution for taking bribes in exchange for a pardon.if a president is impeached he certainly can be convicted for the offence he was impeached for, as this also is written into the constitution.
“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment ./ and Punishment, according to Law.”
. article-1/section-3/clause-7
- though this new majority opinion adds pre-trial steps to work out what he can be prosecuted for and what can be used as evidenceA president does NOT have to be impeached first to be prosecuted. All the justices on the Supreme Court rejected the argument by Trump’s lawyers that he needs to be impeached first. Impeachment is a political process by the legislatory branch which is independent of the judicial branch and it shouldn’t be a requirement for a trial
the Supreme Court is not in a position to grant Trump immunity for the Jan 06 trial - the majority opinion gave several examples of things that he may well be prosecuted for and all agree on that.
Beyond these basic points, the rest of it is very vague. There are basically four questions to be asked though they didn’t set it out quite like this, I’ve set it out like a computer program flow diagram:
Has he been impeached?
- Yes? He CAN be prosecuted
- No? Continue..Is it a core presidential power like pardon power?
- Yes? He is absolutely immune and CAN’T be prosecuted
- No? Continue.Is it an official act?
- No? He CAN be prosecuted.
- Yes? He is presumed immune from prosecution, continue.If it is an official act, would prosecuting him for this act “pose any dangers of intrusion on the authority and functions of the Executive Branch.”?
- Yes? He CAN’T be prosecuted
- No? He CAN be prosecuted.
At first sight that all may seem clear but if you look at it closely none of these terms are defined:
“core”, “official”, “presumptive immunity”, “intrusion”
- all are undefined
Dissenting views said that the majority should have given at least some clear examples. For instance on the third question of what counts as official, that it should have just come out and said that it can’t be counted as part of the official duties of a president to order the construction of a fraudulent alternative slate of electors.
As the law professor Lee Kovarsky put it, about the fourth question, the standard for overcoming the presumption of immunity is "absurdly vague for being this legally salient"..
He also says that we will only find out what it all means as the lower courts work out what it means in their decisions.
TWEET FWIW, the rubber will hit the road when courts cash out the below - the standard for overcoming the presumption of immunity - which IMHO is absurdly vague for being this legally salient:
https://x.com/lee_kovarsky/status/1807870931185947109
I.e. he is saying that this is of very high importance in this decision, yet the Supreme Court has not done anything to help lower courts clarify what it means.
As Ryan Goodman put it agreeing with him, this has “significant implications for deterring future presidents from engaging in criminal abuses of power."
https://x.com/rgoodlaw/status/1807877864995402071
It is the same also for the terms "core" and "official". The Supreme Court has given the lower courts almost no guidance on how to interpret any of these terms.
Also the lower courts can’t look to legal precedent either.
No court has ever had to rule before on which of a president’s acts are core, or official or what the limits are of presumed immunity.
However we will soon get much more clarity. Judge Tanya Chutkan, the judge for the Jan 06 trial, will hold pre-trial hearings to sort it out for the issues central to the Jan 06 trial, likely in September or October
Judge Juan Merchan for the hush money trials also has to make decisions on a tricky matter of what can and can’t be admitted as evidence from when Trump was president as a small amount of the evidence is of things Trump said about the hush money payments after he was president.
This is a graphic I did to try to explain it all
:
TEXT ON GRAPHIC
Trump can stop the Federal case if he is elected but even then he has no executive authority until Jan 20th so he is unlikely to be able to stop the pretrial hearings to determine if his conduct was official or unofficial and which official conduct is an exception to persumptive immunity.
For extreme things like assassinating a rival, everyone including Trump's lawyer says he would be speedily impeached and then prosecuted.
Lower courts now have to decide if e.g. the false electors scheme is official or unofficial conduct.
Justice Sotomeyer says the Supreme Court should have just said it is unofficial.
Similarly the lower courts have to decide if putting pressure on Mike Pence is an exception to presumptive immunity.
Justice Kagyan also says "the actual metes and bounds of the “core” Presidential powers are really anyone’s guess.
Absurdly vague, needs clarification in lower courts.
"With significant implications for deterring future presidents from engaging in criminal abuses of power."
Legal experts try to find out "whatever the hell this opinion was."
Judge Chutkan will likely hold pre-trial hearings on these matters in September or October just before the election.
Due to the complexity this will be like a mini-trial in the lead-up to election day.
Using infographic from: Ryan Goodman (@rgoodlaw) on X
Tweets: Ryan Goodman (@rgoodlaw) on X and Lee Kovarsky (@lee_kovarsky) on X
Mini trial quote: Ruling Further Slows Trump Election Case but Opens Door to Airing of Evidence
Justice Kaygan quote from: Supreme Court. TRUMP v. UNITED STATES
This decision and the legal discussion of it amongst experts is so complex, it was really difficult to condense it down to this extent. Took about 2 days as the main thing I worked on.
Everyone, do say in comments or by messages to me or in the Facebook group etc if anything is unclear. Also of couse do say if there is anything to correct however minor or major or anything I left out that I should cover.
YES A PRESIDENT WOULD BE IMPEACHED FOR ASSASSINATING A RIVAL
Trump’s own lawyer said this
QUOTE STARTS
“You’re saying a president could sell pardons, could sell military secrets, could order SEAL Team 6 to assassinate a political rival,” Judge Florence Pan told Trump lawyer John Sauer during arguments at the D.C. Circuit Court of Appeals over whether he is immune prosecution.
Sauer told the three-judge panel a president would be swiftly impeached and convicted for ordering the murder of a rival. But he argued that without an impeachment, the Supreme Court has held that a president’s official acts are never reviewable by the courts.
. Trump could order SEAL Team 6 to kill rivals and avoid prosecution if not impeached, lawyer says
The Supreme Court didn’t agree with him on immunity, will talk about that later.
But this is just about whether Trump’s lawyer is correct that Trump would be speedily impeached if he ordered the assassination of a rival.
Democrats especially often say that the Republicans are “yes men” for anything Trump says they should do. But this isn’t true. There are many examples of them going against a direct order by Trump.
Yes all except 4 Republicans voted against the bipartisan bill that they had spent four months negotiating just because Trump told them he didn’t want new border legislation, and even though they assured him it was landmark legislation.
. Senate Republicans block bipartisan border package, then scramble to find support for Ukraine aid
This is about Senator James Langford, the senator who helped to negotiate the deal only to lose it at the last moment:
. Abandoned by his colleagues after negotiating a border compromise, GOP senator faces backlash alone
However, 22 Republican senators voted for the Ukraine bill to send it to the House against direct orders by Trump not to do that.
. How each member of the Senate voted on foreign aid package | CNN Politics
Nearly half of them. That would be more than enough to impeach Trump in a roughly equal Senate. In a 50 - 50 senate, 17 Republicans would need to join all the Democrats to impeach him. If it was say 52 - 48 then 19 would be needed and so on.
Now imagine that Trump ordered an assassination of Biden, or Pence. Whether the assassination succeeded or not, surely almost all the senators would vote to convict him - sending it to a criminal trial.
With the actual impeachment for Trump for Jan 06, 10 Republicans did vote to impeach Trump in the house.
. These Are The 10 Republicans Who Voted To Impeach Trump
7 senators voted to convict him, though all except 1 of them due to retire. 7 GOP Senators Voted To Convict Trump. Only 1 Faces Voters Next Year
WHAT HAPPENS NEXT- PRE-TRIAL HEARINGS FOR JAN 06 PROBABLY IN SEPTEMBER OR OCTOBER - AND RULING FOR THE HUSH MONEY TRIAL SEPT 6 AND CONVICTION (IF IT STILL APPLIES) SEPT 18
Even with these very vague instructions, the lower courts have to try to interpret them. There are two judges will do most of this interpretation.
Judge Tanya Chutkan will hold pre-trial hearings to sort it all out likely in September or October. These will be like a mini-trial and they will gather evidence, listen to witnesses and then amongst other things, she will decide:
Were Trump’s orders to make a fraudulent slate of electors an official act of a president? If not he can be prosecuted for it.
Was the official act of telling Pence to substitute fabricated false election results for the real results is one that a president should be free to do without any fear of prosecution? If not he can be prosecuted for it.
Was Trump’s speech to his supporters an official act or personal? What about his tweets on Jan 20th? If any of this is personal he can be prosecuted for that too.
In all these cases it seems highly unlikely she will decide in favour of Trump though there may be nuances to her decision. That then will make it all much clearer.
It’s possible that Trump’s team would appeal and send it to the Supreme Court. But that will just postpone it and the Supreme Court would come to a decision, he can’t stop a case once it is with the Supreme Court.
So, even if Trump is inaugurated as president on 20th Jan 2025, that is far too late to stop this process of clarifying what a president can and can’t be prosecuted for.
The other judge who has to try to make sense of this confusing decision is Judge Merchan. He has a similar but simpler task. The hush money payments were made before Trump was president so are private acts and fair game. But some of the evidence used came from later when he was president.
Was it right to show Trump’s tweets as president to the jury
Was it right for them to hear the testimony from Hicks’ who testified that Trump told her, after he was president, that: "I think Mr. Trump's opinion was it was better to be dealing with it now, and that it would have been bad to have that story come out before the election,"
If he decides that it was wrong to show this evidence to the jury he has to decide:
Is this enough of a change so it could have changed the Jury’s final decision?
If the answer is yes he has to schedule a retrial without the evidence. However he will take a lot of convincing as he said in April that it would be
“hard to convince me that something that he tweeted out to millions of people voluntarily cannot be used in court when it’s not being presented as a crime. It’s just being used as an act, something he did.”
We already have a date for Merchan’s ruling, Sept. 6, and then the final conviction on Sept. 18 “if such is still necessary.”
. Judge delays Trump’s hush money sentencing until at least September after high court immunity ruling
WHY WAS THE SUPREME COURT SO VAGUE? IT’S BECAUSE THEY USED STRUCTURALIST REASONING - HERE REASONING FROM THE SEPARATION OF POWERS
The Supreme Court decided on structuralist lines not partisan political lines that means on the lines of the structure of the constitution. In this case resting heavily on the separation of powers of a president and Congress.
The Supreme Court decided on structuralist lines not partisan political lines that means on the lines of the structure of the constitution. In this case resting heavily on the separation of powers of a president and Congress.
This is how Leo Kovasky put it:
Setting aside the Court’s awful work with precedent and “history” here, this is structuralism at its worst. Any increment of “bold and unhesitating” presidential function dominates all other interests on the democratic landscape.
Indefensible.
https://x.com/lee_kovarsky/status/1808122362576945460
So what does he mean by structuralist?
Structuralists contend that interpreters can avoid moral judgments in hard cases by reflecting on the structures of government, i.e., the Constitution's overall arrangement of offices, powers, and relationships. The Constitution's leading structural principles include federalism, separation of powers, and democracy. This chapter shows that Americans have always disagreed on structural questions and their implications for the constitutional rights of individuals. Interpreters cannot avoid philosophic responsibilities through noncontroversial inferences from the Constitution's structures. A responsible approach to structural questions demands a fusion of historical, philosophic, and scientific inquiry. It cannot avoid philosophic reflection and choices.
SUPREME COURT JUSTICES DON’T FAVOUR TRUMP - FOR INSTANCE THEY DECLINED EVEN TO LOOK AT ANY OF TRUMPS CLAIMS OF ELECTION FRAUD
SCOTUS have consistently refused to even look at ANY of Trump's claims of election fraud.
This is the only Supreme Court case directly part of Trump's many post election law suits. An attempt by Texas to throw out the election results for Georgia, Michigan, Pennsylvania, and Wisconsin.
The Supreme Court rejected it sayingTexas doesn't have standing:
. Texas v. Pennsylvania - Wikipedia
Two of the conservative justices, Alito and Thomas dissented and would have heard it but didn't say anything on the merits of it.
Then of the individual state cases, several of them asked the Supreme Court to expedite them after they failed at the state level.
All of those requests were denied by the US Supreme Court:
Wisconsin (2 cases)
Michigan (2 cases)
Arizona (2 cases)
Nevada
Georgia
for a total of 8 cases, details here
. Results of Lawsuits Regarding the 2020 Elections
SOTOMEYER’S SLIPPERY SLOPE ARGUMENT SUMMARY
The main points here are that
majority opinion should have given an example of a private act, for instance Trump’s lawyer conceded that some of the material was private so they could have given one of those examples
majority opinion should have said that an order to construct a fraudulent alternate slate of electors is never immune no matter whether it is official or unofficial
then she gave the assassination paragraph saying that by not giving the lower courts this guidance the majority opinon has left it open to the lower courts to declare that even assassinating a rival is immune to prosecution
So that’s her slippery slope argument.
The majority opinion uses a slippery slope argument back.
Majority opinion says that the main dissent is asking them to classify everything as private
they don’t explain why they characterize the main dissent in this way - there’s a big disconnect between their summary and what the main dissent actually says.
but it reads like a slippery slope argument because the majority opinion wants lower courts to do the classification of official / unofficial so perhaps the slippery slope implied here is that if you classify one of these potentially private things as private you have to classify them all becuase they all (in the majority opinion) have insuffiicient evidence so far.
Then finally none of them directly seriously contest what Trump’s lawyer said, that a president who ordered an assassination would be speedily impeached (assuming he was detected doing so while in office).
We should get a lot of clarity from the lower courts in the following months on what an unimpeached president can be prosecuted for, as judge Chutkan works on the classification that the Supreme Court has handed down to her as her pre-trial duty. Judge Merchan may also bring some clarity with his decisions.
SOTOMEYER’S SLIPPERLY SLOPE ARGUMENT - SHE WANTED THE SUPREME COURT TO GIVE AT LEAST ONE CLEAR EXAMPLE OF AN UNOFFICIAL ACT OR AN OFFICIAL ACT THAT IS NOT IMMUNE AS EXAMPLES FOR LOWER COURTS
Sotomyer is using a slippery slope argument here. She gives a list of examples that the majority also discussed, the allegations that Trump tried to enlist the former vice president to fraudulently alter the election results, organized fraudulent elector slates, pressured States to subvert the legitimate election results, and exploited violence at the Capitol to influence the certification proceedings.
Sotomeyer says that the Supreme Court should have just said right away that these things don't fall within the official duties of a president. She says these should be easy questions. Shey says they should have just out and said that Trump lacks immunmity for his alleged attempts to enlist the Vice president to use his ceremonial role to fraudulently alter election results:
Yet the majority refuses to conclude that Trump lacks immunity for his alleged attempts to “enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” App. 187, Indictment ¶10(d). Instead, it worries that a prosecution for this conduct might make it harder for the President to use the Vice President “to advance [his] agenda in Congress.” Ante, at 24.
Such a prosecution, according to the majority, “may well hinder the President’s ability to perform his constitutional functions.” Ibid. Whether a prosecution for this conduct warrants immunity should have been an easy question, but the majority turns it into a debatable one.
The majority opinion said that these are things for a lower court to investigate with access to more evidence than they have, about whether these are official acts that a president should be immune for. Sotomeyer here is saying they had enough evidence already to say that he is not immune.
She then goes on to discuss the alternate slate of electors. She says that whether or not the instructions to construct a fraudulent alternate slate of electors is official or unofficial it is clearly not something that a president should be immune from prosecution for and the Supreme Court should have just said so:
Remarkably, the majority goes further and declines to deny immunity even for the allegations that Trump organized fraudulent elector slates, pressured States to subvert the legitimate election results, and exploited violence at the
Capitol to influence the certification proceedings.
It is not conceivable that a prosecution for these alleged efforts to overturn a Presidential election, whether labeled official or unofficial under the majority’s test, would pose any “ ‘dangers of intrusion on the authority and functions of the Executive Branch,’ ” ante, at 14, and the majority could have said as much. Instead, it perseverates on a threshold question that should be immaterial.
Again the majority opinion leaves this for lower courts to sort out.
It seems very likely that Tanya Chutkan after listening to the evidence decides that both of these can be prosecuted in the pre-trial hearing. Then surely if appealed the circuit judges will agree with her decision, if so it would never come to the Supreme Court again and it will be settled law that these are not things a president can be immune from.
SOTOMEYER THEN GIVES THE ASSASSINATION REMARK AS A SLIPPERY SLOPE ARGUMENT TO SUPPORT HER DISSENTING STATEMENT THAT THE MAJORITY OPINION SHHOULD HAVE GIVEN SOME CLEAR EXAMPLES OF PRIVATE ACTS AND PROSECUTABLE OFFICIAL ACTS FOR THE LOWER COURTS TO USE
Then she comes to her paragraph that is shared so much in the media. Here she is using a slippery slope argument. Obviously she doesn’t think the lower courts should decide that making a fraudulent slate of electors is something a president is immune for. So here with her “Immune. Immune, immune” she is talking about what the Supreme Court so far HAS NOT YET RULED TO BE PROSECUTABLE - NOT WHAT IT RULES AS IMMUNE.
Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark.
The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding.
This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting).
The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution.
Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune.
Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
(Supreme Court. TRUMP v. UNITED STATES : 29- 30)
In practice if these cases ever come before the courts, the lower courts will surely decide that these things aren't official acts. But the majority opinion declined to say anything about them.
So Sotomeyer’s point here is that the majority opinion has declined to give ANY examples of official acts that are not immune, even to send a Seal team 9 to assassinate a rival (example from Trump's lawyer).
So she is using a slippery slope argument here - that because the Supreme Court didn't give any examples, it leaves it open for lower courts to decide that even using Seal team 6 to assassinate a rival is an official act.
She is saying they should have given at least some examples. She surely doesn't in reality believe that any lower court would make such a decision.
So it's a rhetorical slippery slope to argue against the official conclusion.
JACKSON MAKES A SIMLAR POINT, HE SAYS THAT A PRESIDENT WHO ORDERS AN ASSASSINATION “HAS A FAIR SHOT AT GETTING IMMUNITY” DOESN’T SAY HE WOULD GET IT
Similarly, Jackson says:
QUOTE Thus, even a hypothetical President who admits to having ordered the assassinations of his political rivals or criics, or one who indisputably instigates an unsuccessful coup, has a fair shot at getting immunity under the majority’s new Presidential accountability model.
So he has "a fair shot at getting immunity" not saying that he would, he surely wouldn't.
MAJORITY OPINION RESPONDS WITH A SLIPPERY SLOPE ARGUMENT SUMMARIZING THE DISSENT’S REQUEST FOR AT LEAST ONE PRIVATE EXAMPLE AS A REQUEST TO LABEL EVERYTHING AS PRIVATE
The majority decision uses another slippery slope argument against her. It says incorectly that Sotomeyer would have them decide that all of it is private.
Finally, the principal dissent finds it “troubling” that the Court does not “designate any course of conduct alleged in the indictment as private.” Post, at 27. Despite the unprecedented nature of this case, the significant constitutional questions that it raises, its expedited treatment in the lower courts and in this Court, the lack of factual analysis in the lower courts, and the lack of briefing on how to categorize the conduct alleged, the principal dissent would go ahead and declare all of it unofficial.
Sotomeyer was just asking the majority to give SOME clear examples of private conduct as guidelines for the lower courts, not to work out every decision.
First, the majority declares all of the conduct involving the Justice Department and the Vice President to be official conduct, see ante, at 19–24, yet it refuses to designate any course of conduct alleged in the indictment as private, despite concessions from Trump’s counsel.
Trump’s counsel conceded, for example, that the allegation that Trump “turned to a private attorney who was willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results” “sounds private.”
... [many other examples that Trump's lawyer conceded sounded private]
If the majority’s sweeping conception of “official acts” has any real limits, the majority is unwilling to reveal them in today’s decision.
But the majority opinion saw this as a request to mark everything as private. So that’s a kind of slippery slope argument too turning request for one example into a request to decide everything.
The majority opinon says clearly this is a point for lower courts to decide. So that’s where their statement comes from. But they could consistently give one or two exceptionally clear examples to help guide the lower courts for further decisions, at least that is Sotomeyer’s request to them which their passage summarizing it doesn’t consider in any detail.
NONE OF THE JUSTICES SERIOUSLY BELIEVE THAT A LOWER COURT WILL RULE THAT AN ORDER TO ASSASSINATE A RIVAL IS A PROTECTED OFFICIAL ACT OF A PRESIDENT THAT CAN’T BE PROSECUTED - BUT HE WOULD BE SPEEDILY IMPEACHED ANYWAY
Back to the idea of an assassination, this is not going to happen in reality that the Supreme Court will be asked to assess if it is an offiical act or not to assassinate a rival.
Trump's own justice used that Seal team 6 example as an example where he said that Trump would be speedily impeached if he did such a thing. Then after impeachment he would be convicted.
This is the context of the seal 6 assassination team remarks
QUOTE STARTS
“You’re saying a president could sell pardons, could sell military secrets, could order SEAL Team 6 to assassinate a political rival,” Judge Florence Pan told Trump lawyer John Sauer during arguments at the D.C. Circuit Court of Appeals over whether he is immune prosecution.
Sauer told the three-judge panel a president would be swiftly impeached and convicted for ordering the murder of a rival. But he argued that without an impeachment, the Supreme Court has held that a president’s official acts are never reviewable by the courts.
“He would have to be and would speedily be impeached and convicted before the criminal prosecution,” Sauer said. “There is a political process that would have to occur under our Constitution.”
“If there’s no impeachment ever, and no conviction, then the official acts are immune. Period,” Sauer added later.
. Trump could order SEAL Team 6 to kill rivals and avoid prosecution if not impeached, lawyer says
So Justice Sotomeyer is using an example where Trump's own lawyer says that if Trump did it he'd be speedily impeached.
The majority opinion says this is incorrect. First textual analysis, the constitution limits what can be done with impeachment, just used to remove an official from office and prevent him running again, and then uses the word “nevertheless” when it goes on to say he can be criminally convicted. None of this suggests in any way that the impeachment is required for a criminal case.
Trump asserts a far broader immunity than the limited one we have recognized.
He contends that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. Brief for Petitioner 16.
The text of the Clause provides little support for such an absolute immunity. It states that an impeachment judgment “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Art. I, §3, cl. 7. It then specifies that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Ibid. (emphasis added).
The Clause both limits the consequences of an impeachment judgment and clarifies that notwithstanding such judgment, subsequent prosecution may proceed. By its own terms, the Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted.
Also, it gives the example of a president who manages to conceal an illegal action until after he stops being president, or if Congress doesn't get its act together to impeach him before he stops being president, Based on these examples again impeachment shouldn’t be a requirement to decide if the president did something illegal.
The implication of Trump’s theory is that a President who evades impeachment for one reason or another during his term in office can never be held accountable for his criminal acts in the ordinary course of law. So if a President manages to conceal certain crimes throughout his Presidency, or if Congress is unable to muster the political will to impeach the President for his crimes, then they must forever remain impervious to prosecution.
Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government.
However one new thing in the majority opinion is that it says that the courts must address this issue of whether a president can be prosecuted for a particular offence before court proceedings begin. Before bringing the president to trial.
This is how they put it:
QUOTE Questions about whether the President may be held liable for particular actions, consistent with the separation of powers, must be addressed at the outset of a proceeding. Even if the President were ultimately not found liable for certain official actions, the possibility of an extended proceeding alone may render him “unduly cautious in the discharge of his official duties.”
So the majority opinion is NOT saying that the president is immune from prosecution if he orders a Seal team 6 to kill a rival. It is just saying that the courts have to decide in pre-trial proceedings whether he can be prosecuted. In this case surely they would say he could be.
It's clear the majority opinion is that some things would be decided to be criminal and not covered by immunity.
However the dissenting opinions say that the majority opinion should have given AT LEAST SOME clear examples of things that would not be covered by immunity. They have said, for example it could have said that organizing a fraudulent slate of electors is something that doesn't fall under official acts of a president in any circumstances and not given that as something for lower courts to decide. The guidance would then be much clearer.
Sotomeyer makes many other criticisms of the majority opinion but here I'm focusing on the remark everyone is quoting and putting it in context.
Also Sotomeyer is a dissenting opinion here. This means what she says has no legal force when it comes to interpreting the law.
Of course in reality the lower courts are never going to decide that a president can order an assassination of a rival and it's never going to come to the Supreme Court and a president who did that would be impeached anyway at stage 1 unless somehow they could conceal it to the end of their presidency.
But if it ever came to the courts then for sure lower courts and the Supreme Court would decide that it is not legal to assassinate a rival.
In reality the lower courts are sure to decide it is also not an official act for a president to order others to make a fraudulent alternate set of electors and they are pretty sure to say he is not immune from prosecution if he orders his vice president to change the vote count before announcing it in the Senate.
So we'll get a lot of clarity in the next few months which will help to deter future presidents from criminal acts and actions against the US constitution.
If Trump is elected he will be able to stop the trial but only when he becomes president on Jan 20th, 2025. That leaves lots of time for these pre-trial investigations to complete. And even if Trump's tream appeals any decision to the Supreme Court, Trump wouldn't be able to stop the Supreme Court from ruling on it if he becomes president.
So in the next several months, we will get a lot of clarification about what is legal and not legal and if necessary confirmed by the Supreme Court no matter who is elected as president and that will act as a significant check on Trump if he is elected president again.
PARDON IS ACCEPTED BY ALL THE SUPREME COURT JUSTICES AS A CORE POWER OF THE PRESIDENT THAT THE JUDICIARY HAS NO AUTHORITY OVER - BUT MINORITY DISSENTS ON THE SUPREME COURT GIVING JUSTICES POWER TO DECIDE WHAT IS “CORE” OR “OFFICIAL” IN PRE-TRIAL INVESTIGATIONS
This is how the majority opinion put it:
QUOTE STARTS
Chief Justice Chase held the provision unconstitutional because it “impair[ed] the effect of a pardon, and thus infring[ed] the constitutional power of the Executive.” Id., at 147. “To the executive alone is intrusted the power of pardon,” and the “legislature cannot change the effect of such a pardon any more than the executive can change a law.” Id., at 147–148.
The President’s authority to pardon, in other words, is “conclusive and preclusive,” “disabling the Congress from acting upon the subject.” Youngstown, 343 U. S., at 637–638 (Jackson, J., concurring)
(Supreme Court. TRUMP v. UNITED STATES : page 8)
This is how Sotomeyer put it in her dissent, she agrees that the Pardon power is intuitively part of a narrow core immunity, which the Government also argues is a core power, though she says that the court didn’t need to rule on this as nothing in the Trump case falls within this core in her view:
QUOTE STARTS
The idea of a narrow core immunity might have some intuitive appeal, in a case that actually presented the issue.
If the President’s power is “conclusive and preclusive” on a given subject, then Congress should not be able to “ac[t] upon the subject.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 638 (1952) (Jackson, J., concurring).
In hisYoungstown concurrence, Justice Robert Jackson posited that the President’s “power of removal in executive agencies” seemed to fall within this narrow category. Ibid., n. 4.
Other decisions of this Court indicate that the pardon power also falls in this category, see United States v. Klein, 13 Wall. 128, 147 (1872) (“To the executive alone is in trusted the power of pardon; and it is granted without limit”), as does the power to recognize foreign countries, see Zivotofsky v. Kerry, 576 U. S. 1, 32 (2015) (holding that the President has “exclusive power . . . to control recognition determinations”).
In this case, however, the question whether a former President enjoys a narrow immunity for the “exercise of his core constitutional powers,” ante, at 6, has never been at issue, and for good reason: Trump was not criminally indicted for taking actions that the Constitution places in the unassailable core of Executive power. He was not charged, for example, with illegally wielding the Presidency’s pardon power or veto power or appointment power or even removal power.
(Supreme Court. TRUMP v. UNITED STATES : page 23)
The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of “conclusive and preclusive” powers that the Court previously has recognized.
(Supreme Court. TRUMP v. UNITED STATES : page 24)To say, as the Government did, that a “small core of exclusive official acts” such as “the pardon power, the power to recognize foreign nations, the power to veto legislation, [and] the power to make appointments” cannot be regulated by Congress, see Tr. of Oral Arg. 85–87, does not suggest that the Government agrees with immunizing any and all conduct conceivably related to the majority’s broad array of supposedly “core” powers.
(Supreme Court. TRUMP v. UNITED STATES : 25)
Jackson makes a similar point. She doesn’t dispute that there are core powers. But she would have this left to the juries to decide and for Congress to legislate for with additional legislation. She disputes the new model that judges should make such decisions by themselves in pre-trial investigations of what is “core” and what is “official”.
QUOTE STARTS
For instance, its opinion lists some examples of the “core” constitutional powers with respect to which the President is now entitled to absolute immunity—a list that apparently includes the removal power, the power to recognize foreign nations, and the pardon power. Ante, at 6–9.
However, the majority does not—and likely cannot—supply any useful or adminIstrable definition of the scope of that “core.” For what it’s worth, the Constitution’s text is no help either; Article II does not contain a Core Powers Clause.6
So the actual metes and bounds of the “core” Presidential powers are really anyone’s guess.
(Supreme Court. TRUMP v. UNITED STATES : pages 13 - 14)Ironically, then, while purportedly seeking to transcend politics, see ante, at 41–42, the Court today displaces the independent judgments of the political branches about the circumstances under which the criminal law should apply.
Effectively, the Court elbows out of the way both Congress and prosecutorial authorities within the Executive Branch, making itself the indispensable player in all future aTtempts to hold former Presidents accountable to generally
applicable criminal laws. “The Framers, however, did not make the judiciary the overseer of our government.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 594 (1952) (Frankfurter, J., concurring).
To be sure, this Court may sometimes “have to intervene in determining where authority lies as between the democratic forces in our scheme of government.” Id., at 597. But it has long been understood that “we should be wary and humble” when doing so. Ibid
The majority displays no such caution or humility now.
Instead, the Court today transfers from the political branches to itself the power to decide when the President can be held accountable.
What is left in its wake is a greatly weakened Congress, which must stand idly by as the President disregards its criminal prohibitions and uses the powers of his office to push the envelope, while choosing to follow (or not) existing laws, as he sees fit. We also now have a greatly empowered Court, which can opt to allow Congress’s policy judgments criminalizing conduct to stand (or not) with respect to a former President, as a matter of its own prerogative.
(Supreme Court. TRUMP v. UNITED STATES : pages 15-16)Once self-regulating, the Rule of Law now becomes the rule of judges, with courts pronouncing which crimes committed by a President have to be let go and which can be redressed as impermissible. So, ultimately, this Court itself will decide whether the law will be any barrier to whatever course of criminality emanates from the Oval Office in the future.
The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from bcoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our sakes, I hope that they are right.
(Supreme Court. TRUMP v. UNITED STATES : pages 21-2)
We will get answers to Jackson’s concerns here in the lower courts, as they work out the implications of these new guidelines. The extent to which future courts would shield presidents from investigation by a jury depends on how narrowly they decide what is “core” and what is “official” and the new rules about what can be used as evidence and how.
HOW I DO THESE FACT CHECKS WHEN I’M NOT A LEGAL EXPERT - READ THE DECISION JUST FOR A LOGICAL FRAMEWORK TO HANG THE FACT CHECK ON
I am no legal expert. However I’ve been fact checking these Supreme Court cases for some time now to help scared people and they find my fact checks helpful.
How I do it is that I check different sources by legal experts, and I read the text itself of the decision.
Legal decisions are meant to be understood by a lay person, I have a good background in logic from my maths degree and I find legal language quite easy to read.
What I don't have is the background in what the terms mean and context and implications of it all - but that's what the legal analysis and commentary does and I just use my logical analysis of the text and what it says as like a frame to hang the exposition of what the experts say.
Based on that I can also dismiss what some experts say informally in interviews with the media when it is clear that they are using hyperbole or show that they haven’t yet had the time to read the decision carefully - as sadly often happens immediately after a Supreme Court decision.
DELAY IN THE HUSH MONEY CASE TO SEPTEMBER - JUAN MERCHAN’S TASK TO CLARIFY THE PERPLEXING ISSUES OF EVIDENCE - THAT A PROSECUTOR CAN POINT TO PUBLIC EVIDENCE OF AN OFFICIAL ACT BUT CAN’T ALLOW THE JURY TO “INSPECT IT”
This is because of a strange thing in the Supreme Court decision, they said that anything uncovered about an official act that a president is immune for can't be used as evidence even in a case that is not directly about that act. However it does allow the prosecuoter to point to the public evidence of an official act (e.g. the tweet which was tweeted out to millions) but it doesn't allow the jury to "inspect" this evidence. Inspecting is something to do with digging into things that were not revealed publicly. But legal experts say this is an unworkable distinction.
So in short, what the distinction is between pointing to a tweet and letting the jury inspect a tweet isn't clarified by the supreme court. This is for lower courts to settle. But Juan M. Merchan, judge in the hush money case, said in April it would be “hard to convince me that something that he tweeted out to millions of people voluntarily cannot be used in court when it’s not being presented as a crime. It’s just being used as an act, something he did.”
So it is not likely that the appeal works. The prosecution allowed the delay though it thinks the appeal has no merits and will fail.
It is about whether any of the evidence shown to the jury shouldn't have been shown to them. Most of the evidence was clearly unofficial, anything that Trump said or did or his officials before he was president was not official. Also evidence can be presented if it is public information, such as a tweet say, even if official, also if it is something that he is not immune for.
The Supreme Court decision is contradictory on this matter. But it makes it pretty clear that the Jury can look at the public record even of immunized conduct, but that it can't "inspect" it whatever that means which is not clarified.
This is likely to confuse some of the decisions in the lower courts about the Jan 06 case but it's not likely to affect the hush money case.
QUOTE STARTS
Though the Sept. 18 date is well after this month’s Republican National Convention, where Trump is set formally to accept the party’s nomination for president in this year’s race, it is far closer to Election Day, which could put the issue top-of-mind for voters just as they seriously tune into the race. Because of absentee voting timelines in certain states, some voters may already have cast ballots before anyone knows whether the former president will have to spend time in jail or on home confinement.
Trump’s lawyers sought unsuccessfully before the trial to keep out certain evidence that they said concerned official acts, including social media posts he made as president.
New York Judge Juan M. Merchan said in April it would be “hard to convince me that something that he tweeted out to millions of people voluntarily cannot be used in court when it’s not being presented as a crime. It’s just being used as an act, something he did.”
...
Merchan wrote that he’ll rule Sept. 6, and the next date in the case would be Sept. 18, “if such is still necessary.”
In the defense filing Monday, Trump’s attorneys argued that Manhattan prosecutors had placed “highly prejudicial emphasis on official-acts evidence,” including Trump’s social media posts and witness testimony about Oval Office meetings.
Prosecutors responded that they believed those arguments were “without merit” but that they wouldn’t oppose adjourning the sentencing for two weeks as the judge considers the matter.
. Judge delays Trump’s hush money sentencing until at least September after high court immunity ruling
About the evidence ruling, this tweet thread by Leo Kovarsky summarizes it well:
QUOTE STARTS
Perhaps the most ridiculous part of the Immunity opinion was Part III-C, where the Court held that not only was much official conduct immunized, but immunized conduct couldn’t even be used as EVIDENCE to prosecute conduct that wasn’t immunized.
...
The idea that official-acts immunity would protect a president from a prosecution for a bribes-for-pardons scheme was, many thought, a devastating argument against official-acts immunity. (Chief Justice Roberts appeared to be one of those people at Oral Argument, ironically.)
On the primary rule of immunity, the conduct of granting the pardon couldn’t be criminalized, but the *agreement* to bribe could be.
But then the Court has this wacky, secondary rule of evidence – that an official act that gets immunity ALSO can’t be used as EVIDENCE to show intent or state of mind with respect to some other crime.
So on any reasonable reading of the rule, the pardon couldn’t even be introduced of evidence that POTUS knew about/intended the scheme. This is [Justice Amy Coney Barret] ACB’s point in her concurrence:
This is obviously an absurd result, so the Chief tries to wriggle free with a response that renders the secondary rule completely unintelligible. He says:
QUOTE But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of
the act.
So a restatement of the Court’s position is something like this: “immunized conduct cannot be used as evidence to prove private conduct, except through certain evidence of immunized conduct.”
What? (The proposition that you can’t introduce evidence on motive doesn’t make the Court’s point any clearer.)
It’s just completely unintelligible. So much so that it drew this caustic footnote from the dissent:
QUOTE The majority suggests, in a footnote, that a “prosecutor may point to
the public record to show the fact that the President performed the official act,” so long as the prosecutor does not “invite the jury to inspect” the act in any way. Ante, at 32, n. 3. Whatever that suggestion is supposed to accomplish, it does not salvage the majority’s nonsensical evidentiary rule
Look, it just doesn’t make any sense. You can’t wave away the bribes-for-pardons problem by insisting that a court could look to extrinsic evidence and ALSO insist on a rule that evidence of immunized conduct can’t be used to show knowledge/intend in a prosecution for conduct that’s not immunized.
It’s one of the many rather ridiculous problems that are going to hamstring courts as they try to implement this ruling.
https://x.com/lee_kovarsky/status/1808153954506637684
On whether Merchan might rule out any of the evidence - the worst case is he orders a retrial without that evidence.
The most controversial testimony here is the testimony by Hope Hicks of conversations he had with Trump after he became president.
QUOTE STARTS
"I think Mr. Trump's opinion was it was better to be dealing with it now, and that it would have been bad to have that story come out before the election," Hicks testified during the trial regarding a 2018 conversation with then-President Trump about Stormy Daniels' accusation of a long-denied 2006 sexual encounter with Trump.
...
According to Schaeffer, Hicks' testimony poses a novel question to Merchan, who will need to weigh the Supreme Court's limit on using "testimony or private records of the President or his advisers" as evidence at trial.
...
In addition to prohibiting prosecution for official acts of a president, the Supreme Court's ruling restricted the use of evidence related to official acts in cases related to a president's private actions, including limiting evidence and testimony from a president's advisers.
...
According to Justin Levitt, a constitutional law professor at Loyola Law School ...
"It's not entirely clear what they meant by the prohibition on the use of evidence," Levitt said. "For as long and prominent an opinion as it was, it's not very careful, and so it doesn't provide a lot of guidance."
...
If Merchan determines that the evidence cited by prosecutors was protected by presidential immunity, he then needs to weigh if the introduction of the evidence at trial was harmless or if it created a "structural error that rendered this trial utterly unfair," according to Schaeffer.
"There's just a mountain of other evidence that would support the jury's verdict, so I don't see it really having any appreciable impact, if any impact, on the New York case," Pace University School of Law professor Bennett L. Gershman told ABC News.
However, prosecutors themselves placed emphasis on Hicks' testimony when urging jurors to convict the former president -- potentially creating an issue if the testimony is deemed to be protected by immunity.
"She basically burst into tears a few minutes -- a few seconds after that because she realized how much this testimony puts the nail in Mr. Trump's coffin," Steinglass said in his closing arguments to jurors about Hicks' testimony.
If Merchan opts to set aside the verdict, he could order a new trial without any of the contested evidence related to official acts, according to Levitt.
. Following Supreme Court ruling, what happens next in Trump's criminal hush money case?
Professor Leo Kovasky says there is no case here and that Merchan is sure to vacate the conviction and that the New York appeals court will agree with him (so it won’t go to the Supreme Court because it can only go further if the two courts disagree):
First, this is obviously private conduct unrelated to the discharge of the American presidency. Therefore, no immunity, evidence is fine. End scene.
Second, even if we indulged a fiction that this is "official" presidential business, it's the type of official conduct for which immunity is only presumptive, not absolute. And that can be pierced by showing that the prosecution doesn't endanger core presidential function.
Third, even if we pretended the conduct itself was immunized, there's a really good argument that it could come in anyways:
QUOTE ”But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act.”
The tweet doesn't require any discovery, it's effectively a public record. The material testimony from advisor Hope Hicks was about pre-presidential conduct. Records of the two or three payments were (I believe) obtained from third parties.To sum up: (1) it's not official conduct; (2) even if it were, there wouldn't be immunity; and (3) even if there were immunity, the most important evidence (the tweet) could still come in.
I'll add that this is a rather unique situation because the rationale for such a thick immunity is to spare a former president the indignity of trial. But he's already had his trial, you can't unring that bell.
So all we're really talking about is whether to overturn the conviction. And that's almost certainly going to be a higher bar to clear, in terms of forcing a redo.
I suspect that if any appeals court besides SCOTUS finds error (I doubt it), it will be found "harmless,"meaning that it won't disturb the conviction. I've been careful to carve out the SCOTUS response, because I honestly have no idea what they'll do with this doctrine anymore.
How the text of this opinion formally applies feels very secondary to whatever the Court feels like it should do as a policy matter when the NY conviction goes up.
But anyways, no, Merchan is not going to vacate the conviction for this, and the NY appeals courts are not going to do that either.
See tweet thread here
So - the worst case is that Judge Merchant orders a retrial which is highly likely to still convict him, but the prosecution thinks this appeal is without merit and most experts think it's unlikely that the appeal succeeds
Whether it succeeds or not is matter of a decision by a single justice after careful deliberation - what he decides based on examining the Supreme Court guidance. It is then for the appeal court to re-examine to check his decision. It is not a matter for any jury to decide.
It is most likely that Merchan sentences Trump on Sept 18, just a few weeks before election day on Nov 5. It's not necessarily a good outcome for Trump's team to be sentenced for a criminal conviction just before election day.
QUOTE STARTS
Judge Merchan, in his response Tuesday, signaled to the parties that he would rule on Trump's motion to set aside his conviction on Sept. 6.
He gave Trump until July 10 to submit papers and the DA's office until July 24 to respond.
Merchan has now set sentencing for Sept. 18 at 10 a.m. ET.
. Judge in Trump's criminal hush money case postpones sentencing to Sept. 18
Trump can't stop this case even if it is set for a retrial and he is elected president as it is a state rather than a federal case.
TRUMP CAN’T BECOME A POPULIST DICTATOR BECAUSE OF THE USA’S VERY STRONG CONSTITUTION
This may help some of you who worry about the potential for Trump to somehow over throw the US democracy. It's based on acomparative analysis of democracies which have had populists take them over and ones where a populist takeover has failed.
This study (NOT ME) concludes that the US democacy is very safe from any attempt by Trump to overthrow democracy. This is because of. .
1. The US institution is very strong because of its US constitution which has lasted for well over two centuries with only rare amendments.
2. Populists need a very major crisis to get overwhelming support (he gives the example of 3,400% inflation and guerrila warfare killing 16,000 civilians in Peru in the 1980s) or a big bonanza (like the Venezuala oil boom) - none of this is happening in the USA.
It's from before Jan 06 but the same points apply - I'd say that Jan 06 actually confirmed its conclusions - if you compare to what would have happened in a country with a less stable democracy - the Jan 06 riots really help to underline how very strong and resilient the US democracy is. All that happened is that proceedings were delayed for a few hours, and measures put in place to make sure it can never happen again.
QUOTE STARTS
The investigation finds that the risks have been overestimated. Populist leaders manage to suffocate democracy only when two crucial conditions coincide
First, institutional weakness, which comes in various types, creates vulnerabilities to populist power grabs.
Second, even in weaker institutional settings populist leaders can only succeed with their illiberal machinations if acute yet resolvable crises or extraordinary bonanzas give them overwhelming support which enables them to override and dismantle institutional constraints to power concentration.
Because none of these conditions prevail in the United States, an undemocratic involution is very unlikely.
First, the federal system of checks and balances, rooted in an unusually rigid constitution, remains firm and stable.
Second, President Trump encountered neither acute crises nor a huge windfall; consequently, his mass support has remained limited.
Facing strong resistance from an energized opposition party and a vibrant civil society, the U.S. populist cannot destroy democracy. Instead, Trump’s transgressions of norms of civility have sparked an intense counter-mobilization that may inadvertently revitalize U.S. democracy.
Here, by a vibrant civil society it mainly means one that doesn't hesitate to litigate where it's needed. It also refers to it as a "vigilant active citizenry". And this means vibrant in comparison to the examples it gives where citizens no longer try to use the courts because they don't work and stuff like that.
Here is where it's used later in the paper:
QUOTE The litigiousness of political forces and a vibrant civil society expose infringements to immediate judicial challenges
QUOTE A vigilant, active citizenry and a vibrant civil society reliably sustain U.S. democracy
By a crisis, he means a very severe and resolvable crisis that a populist figure both promises to resolve and succeeds in resolving. E.g. hyperinflation, very severe economic crisis that can be resolved with drastic measures, actual guerilla warfare and so on.
The US opoid crisis wouldn't count. Neither severe enough nor with any clear way to resolve it.
He gives the example of the 2008 recession. That wasn't enough of a crisis either.
It was posted before the COVID pandemic on 2nd Jan 2020. I think they would have counted COVID as an acute crisis but Trump didn't manage to cash in on that because of a very mixed response to it that the public didn't see as decisive or effective - they mean an acute crisis that the populist figure is able to resolve decisively.
His examples include Peru which had 3,400% inflation and gurella warfare with a death toll of 69,000 citizens to resolve in the 1980s.
Then even if there was such a crisis he says that a US populist still wouldn't be able to use it to get dictatorial type power because of the many other factors that stabilize the US democracy.
This is how he uses the word "crisis" later in the study:
QUOTE Second, even in weaker institutional settings populist leaders can only succeed with their illiberal machinations if acute yet resolvable crises or extraordinary bonanzas give them overwhelming support which enables them to override and dismantle institutional constraints to power concentration.
QUOTE Consequently, democracy succumbed only under a second precondition: when populist politicians won office in countries plagued by acute yet resolvable crises or blessed by huge hydrocarbon windfalls. The enormous benefits that populist leaders can provide as providential saviors from a looming catastrophe or as distributors of extraordinary wealth gave them huge mass support, which allowed them to override political opposition and push through institutional transformations to concentrate power and disable checks and balances.
QUOTE “Crisis” means an acute challenge and potential breakpoint. Consequently, the lasting problems caused by the 2008 recession do not count as crisis. Nor are they easily resolvable.
QUOTE Upon taking office, Fujimori faced both disastrous hyperinflation (3,400% in 1989) and a dangerous guerrilla war: The brutal Shining Path inflicted mass terror while police and military responded with equal cruelty, causing a combined death toll of 69,000 citizens. No wonder that this populist leader won 80–85% approval when closing Congress and the courts with the claim that only unrestricted presidential predominance could effectively combat those two grave challenges (Carrión Reference Carrión2006). Thus, a severe double crisis allowed Fujimori to prove his bold agency, bring drastic relief, and garner the overwhelming popularity required for imposing constitutional change.
QUOTE STARTS
This fortunate lack of crisis was no accident. In general, advanced industrialized countries like the United States are less exposed to economic shocks than economically weaker Latin America and Eastern Europe; and their higher borrowing capacity can smooth out downturns (Wibbels Reference Wibbels2006, 443-452). Remarkably, even the global crisis of 2008, which originated in the United States, hurt this country significantly less (-2.9% growth in 2009) than Hungary (-6.6%), for instance. Other grave challenges, such as large-scale attacks by foreign terrorists, are unlikely in the United States as well; 9/11 was the first strike on the U.S. mainland in nearly 200 years and has not been followed by similar assaults. And what country in the world would dare to defy the global superpower by declaring war? Conversely, a war started by notorious hothead Trump may not produce a significant, lasting “rally around the flag” effect, but instead fuel criticism and conflict in this highly polarized society. For these reasons, the chances for the U.S. leader to win the overwhelming mass support that allowed some populist chief executives in Latin America and Eastern Europe to sweep away liberal safeguards, concentrate power, and march toward authoritarianism seem low.
Even if some accidental crisis were to boost Trump’s approval ratings, democratic backsliding would be unlikely in the United States. After all, the vigilance of a well-organized, resource-endowed civil society and the litigiousness of the citizenry, which has ample opportunities to invoke diffuse judicial review, sustain compliance with formal institutions and block or limit efforts to override constitutional rules. Populist attempts to grab power, weaken checks and balances, restrict freedom of the press, and squeeze the opposition run into a web of obstacles and incur substantial political costs in this evenly divided polity. All of Trump’s controversial policy measures that have threatened to damage liberal democracy have immediately provoked a withering barrage of court challenges, initiated by a great variety of citizens, NGOs, state-level agencies, and city governments; and interestingly, Trump has been unusually respectful of judicial rulings (Peabody Reference Peabody2018). In line with voter preferences, many cities and states have also used administrative mechanisms to hinder the billionaire’s populist initiatives (Whittington Reference Whittington2018, 4), for instance by refusing to cooperate with his attempts at tightening immigration enforcement (“sanctuary cities”).
PROJECT 2025 IS JUST AN ILLEGAL FANTASY - AND A REPUBLICANS PRESIDENT CAN’T CHANGE THE US CONSTITUTION OR LEGAL CODE
A consitutional convention to change the US constitution to a far right constitution is simply impossible. Far right Republicans have been trying to get enough states to start such a convention for ages and are nowhere near. The numbers aren't there. Even some Republican states have said no. It requires 2/3 of states to call a convention. It requires 3/4 of states to ratify it. They are nowhere near the 2/3 number. It is impossible to achive 3/4. That would require many Democrat states to agree on the change.
So far only 19 states have requested a convention. It needs 34 to request it. It's failed 14.
If 3 more states fail it, it can't happen as that would leave only 33 states.
There are only 23 Republican controlled states (trifectas) so it’s impossible for Republican controlled states to even request a convention and highly unlikely that number increases to the necessary 34 Republian controlled states never mind the 38 needed to pass a Republican amendment.
Also the current attempt to get together enough states to hold a constitutional convention has seen 14 states reject it, 6 of them Republican.
Only 19 have passed it and it hasn't passed in any Democrat controlled legislatures. The most Democrat states that haven't yet looked at the request are California, Connecticut, and Massachussets. If those three fail it too, making a total of 17 rejections, it can't happen.
To pass any amendments they need 38 states to approve them, which would mean they need 2 of the 14 states that have already rejected the call for a convention to approve the amendments.
So the numbers are just not there.
. I go into details here:
BLOG: Why US constitution can’t be amended by Republican controlled legislatures on their own
Yet Project 2025 assumes that just by having Trump as president magically somehow they can edit the US constitution as they like. There is no explanation of why that would be the case.
This is one of many things that makes project 2025 a legal fantasy (words of a legal expert not mine)
Also there is no way that Trump can get a majority of the far right in either house. Nowhere near. If he puts up lots of far right candidates in moderate states they will lose them.
Trump has been very weak at passing far right legislation. He was not able to pass any legislation in support of his manifesto pledge for a wall with Mexico and nothing to suggest he has got any better at that. He doesn’t have the talent Biden has for working across the House with members of the opposing party.
Also he can’t use soldiers to enforce illegal laws because all the soldiers and police swear an oath to protect the US constitution above all.
For details see:
SO WHY DO SO MANY SAY THAT TRUMP COULD OVERTHROW DEMOCRACY IF HE CAN’T? THERE’S A LOT OF CAMPAIGN EXAGGERATION AND BOTH SIDES BENEFIT FROM THIS NARRATIVE, OR AT LEAST THINK THEY DO
Remember there’s a lot of campaign exaggeration going on. The issue here is that the campaigners on both sides benefit from exaggeration. Biden supporters benefit from really hyping up this Supreme Court decision and making it seem like a vote for Trump is a vote for a dictator and to overthrow democracy - because they think this will energize voters to vote against Trump. But Trump supporters also have a reason to hype this up, because Trump appeals most of all to the far right and to people who just feel Trump can’t do anything wrong and want him to be a kind of dictator of the USA. So he plays that up too. But neither is possible.
The US constitution has survived over 200 years with very little by way of changes and seems set to surive another several centuries at least :). Unless somehow our society transforms so much we no longer need this sort of thing.
It is a rather different situation from the far right in Europe. This whole thing about claims of stolen election doesn’t exist here.
None of the far right in Europe want to overthrow democracy or install any kind of a dictator. It’s the opposite, they try to appeal to moderates and see that as the only way to get in.
So (writing from the UK), from this side of the Atlantic Trump’s strategy seems very odd indeed. How could he think that he could get elected in a vibrant democracy like the USA with such anti-democratic claims? Even though false, what is the appeal of it to ordinary Americans?
But we are yet to see if that strategy really works. In 2020 Trump got huge rallies and Biden only small physically distanced groups because he kept carefully to the COVID restrictions. Yet Biden got in as president. That makes it very clear that being able to get enthusiastic support from the far right isn’t necessarily a winning strategy for Trump.
One answer might just be that Trump is not a very experienced politician and so is following his gut by doing things that get lots of enthusiasm from the crowds but don’t translate into electors in the electoral college very well.
It’s possible that the Democrats might benefit from scaling down their claims of the fragility of the US democracy too.
Anyway whether it is the best strategy or not, that is the tenor of their strategy and likely to continue that way so expect lots of exaggerateion and hyperbole on this topic on both sides through to election day.
CONTACT ME VIA PM OR ON FACEBOOK OR EMAIL THE BEST WAY TO CONTACT ME AS I DON’T GET NOTIFICATIONS FOR MANY COMMENTS ON MY POSTS
If you need to talk to me about something do contact me it is often far better to do so via private / direct messaging because Quora often fails to notify me of comment replies.
You can Direct Message my profile (then More >> messages).
Or better, email me at support@robertinventor.com
Or best of all Direct Message me on Facebook if you are okay joining Facebook. My Facebook profile is here:
I usually get those messages much faster than on the other platforms as I spend most of my day there.
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We also have many scared and panicking people use our group. If you can help as a first responder basically just to help people who are panicking to listen to them, help them to calm down a bit, find out what the issue is and so on it’s a great help as sometimes it’s some hours before someone can do a detailed debunk, whoever can help might be asleep or doing something else etc etc.. So that’s also a great help.
SHORT DEBUNKS (NEW)
I have just started a new page called “short debunks”. This has all the substantial debunks I do for the Facebook group. As you see I do many more of these, often ten a day, far too many to write them all up as blog posts., It only has the most recent short debunks, it would take ages to update it with older ones.
But if there is something scaring you in the news you may find I have debunked it here already.