@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika there’s a norm against prosecuting Presidents while in office that held through the Trump years. afterwards, as Mitch McConnell insisted when arguing against impeachment, was the time for accountability. until after July 1 it wasn’t. there is now no time for Presidential accountability.
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika Obama, fearful of prosecution when he was finally about to assassinate a US citizen, had the OLC preemptively do a lengthy legal analysis that concluded a combination of the public action defense, the GWB/war on terror’s authorization of military force, and the President’s military prerogatives enabled it. https://www.aclu.org/sites/default/files/assets/2014-06-23_barron-memorandum.pdf
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika there is a huge difference between a high bar and no bar. the possibility of punishment with a high bar still has a deterrent effect on egregious behavior. no bar, no possibility of accountability, becomes outright permission.
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika (1) presidential acts can be divided into core-official, non-core-official, unofficial acts; (2) all official acts (core and noncore) are “at least presumptively” immune with an almost impossible bar to overcoming the presumption; (3) core-official acts, including exercise of the pardon power, are automatically *absolutely* immune; (4) no inquiry into motive can be made in distinguishing official from unofficial acts…
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika (5) alleged violation of generally applicable law cannot be a basis for classifying an act as unofficial. all of this was invented into law by the Court on July 1. /fin
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika Trump was not prosecuted for military action. He, like Obama before him, engaged extensively in drone assassination, and that was fine as far as the law and the Biden DOJ were concerned. The public action / public authority defense was already very capacious, a very high bar to clear!
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika except SCOTUS just made this whole framework up. it is written nowhere in the Constitution, prior Supreme Courts and almost all legal scholars did not find its logic implicit in the Constitution. John Roberts invented it and now it is supreme law of the land.
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika we do want them prosecutable, though. the bar to successful prosecution should be very high. Justice Jackson emphasizes in her dissent all the hurdles a successful prosecution has to overcome, all the ordinary defenses well resourced defendants generally have against criminal prosecution, plus public action defenses only available to public officials.
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika the Supreme Court read this decision into the Constitution itself. Congress cannot alter it. indeed, it is based on “separation of powers” explicitly — the idea that the President has prerogatives Congress cannot regulate. 1/
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika the only remedies are (1) the Supreme Court (perhaps after some personnel changes or additions) revisits and revises/reverses; (2) a Constitutional amendment overrules the Supreme Court; (3) we revisit the Supreme Court’s authority to overrule other branches via judicial review, in place since Marbury v Madison (1803). /fin
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika that law is this ruling. this ruling immunizes malicious prosecution from any examination into motive and ultimately from any accountability. unless it is a prosecution of a former President for an “official act”, whether that is malicious or merited. 1/
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika the Supreme Court provided a pathway and a roadmap for Presidents to maliciously prosecute rivals or anyone else with no possibility of accountability. except those former Presidents / official acts. /fin
@marick (whatever role you played in this, i am very grateful! and of course the converse of failure not being the electorate’s fault goes to successes. of course, everything is affected by the nature and state of the electorate. but credit for the success goes to intervenors like you and Dawn! (i don’t know Dawn, but on your say-so.))
@marick i’m really sorry! i really didn’t mean to scold you, but i am brittle and pissed off at the moment about other things and i think i just powered through badly. (i’m sure i did scold you! i’m not denying! that’s just not what i intended. i intended to make a general point strongly, not to accuse you of anything.) 1/
@marick and i am obviously communicating very badly! i am not critiquing scolding voters as a political tactic. i mean i think it’s probably dumb, but if someone thinks it a good tactic, have at. what i’m critiquing is *blaming voters*, that is, among those of us who intervene in politics, attributing responsibility for putative bad outcomes to voters’ nature or effectively immutable preferences, rather than to the things we intervenors do and to the institutions we all collectively shape. 2/
i am very, very sorry to have sapped your enthusiasm at all. that’s 180 degrees reverse from my intention. again my point is entirely that we who arrogate some role to intervene (i mean arrogate in a good way here!) are where we must place accountability for political outcomes, not on an electorate that just exists, is no more or less a useful point of accountability than the tides. 3/
intervenors try to persude the electorate, sometimes. and that’s great! i think it’s the best way to do politics. 4/
but when we fail (or in people like Isgur’s case, pretend to fail), we fail. shifting blame, arguing accountability should lie with the electorate, is a bad, bad move. 5/
i’m not saying you ever have or would do that! i just went half-cocked on a remark that triggered this particular allergy, and i’m terribly sorry, i understand that i treated you unkindly and sapped enthusiasm and made you feel worse about exciting and laudable things you are doing.
i am really sorry about that! it was not my intention, but it was still my act, and i don’t think it was you being overly sensitive, but me being overly insensitive. again, i’m very sorry. /fin
@marick (i think votefwd looks great! it’s not blaming the electorate for anything. it is encouraging the electorate to vote! i also think it’s fine—but probably dumb!—to scold the electorate, if you think it will do any good. anyone can do politics however they want. but if you lose by scolding the electorate (not referring to you personally!), it’s you who sucks, not them. your failed to achieve your goal. it is never the electorate’s “fault”. that’s useless and incoherent, a dodge.)
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika yes. it limits prosecution of official acts by the president. which means it enables malicious prosecution by the president, as long as he keeps the maliciousness discrete so it is presumptively an official act whose motive cannot be inquired into.
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika no. it expands the ability of Presidents to prosecute everybody but ex-Presidents for official acts.
i think i’ve devoted all the time i can to explaining why i think this is an invitation to Presidential lawlessness and abuse.
@marick I didn’t think I was arguing with you! I am fine with telling people they should be better, and how they could be. That’s intervention, not explanation. What I’m against is attributing bad political outcomes to their not being better. When we try to understand politics and allocate responsibility, we might allocate to ourselves for not doing a better job of helping people be better. But it’s no use attributing to the public for not being better, often comes to justify a lot of mischief.
@marick I think I agree with you we’ve been talking oast each other. Undoubtedly that’s my fault!
I am extremely allergic to allocations of responsibility to voters or the electorate. I think that’s bullshit. But it’s quite distinct from intervening with voters, to persuade or inspire. That’s the best kind of politics! It’s the use as an explanatory device, the allocation of responsibility or blame, that I object to.
@marick I’m on the road now, but will try to take a look at the project you linked later.
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika dude. i’m not the state of journalism. i’m an american and a civil libertarian who has read this decision in full and carefully considered it, and in my view it amounts to nothing less than a coup substantially upending the Constitutional order.
I haven’t read the Bellingcat piece yet, but this kind of behavior by Musk I take as an endorsement, so I am passing the link along. https://www.bellingcat.com/news/2024/07/09/russian-missile-identified-in-kyiv-childrens-hospital-attack/
Screenshot of a tweet by Jimmy Rushton, showing that X/Twitter blocks clicking a Bellingcat link with a “Warning: this link may be unsafe” splash.
@volkris @realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika I would like to see Biden prosecuted over any actions that are plausibly alleged to be illegal abuses of power. I don’t think those prosecutions would succeed, because I think Biden’s actions (largely inactions) have been well within his discretion. But if there really has been an illegal abuse of power, then he absolutely should be held accountable for it.
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika baseless prosecutions can be dismissed. it’s hard to win a criminal prosecution against a person with resources to defend themselves, even when the accused is guilty, let alone when the prosecution is baseless.
but there’s no remedy for a lawless president immune from prosecution.
we just disagree, pretty strongly, about the balance of harms. 1/
@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika and the balance of benefits, since a President can go after his predecessor with full immunity even if the prosecution is malicious, He just has to dig up dirt from before or after the predecessor’s term so the immunity for official acts no longer applies. even the revenge prosecutions the decision purports to remedy is not actually remedied. /fin
"Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law."
— Chief Justice John Roberts
United States Supreme Court