@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika if you think Trump's prosecutions are unfounded and malicious, this decision will prevent similar prosecutions of ex-presidents, but it certainly won't prevent unfounded or malicious prosecutions of anyone else. 1/

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika (actually, it won't even prevent unfounded or malicious prosecutions of ex-presidents based on ginned up allegations about pre- or post-Presidential unofficial acts! so if you really think weaponized prosecution of political rivals is the problem — which John Roberts plainly does! — this decision narrows the target but increases the range!) 2/

@realcaseyrollins@noauthority.social @volkris @realcaseyrollins@social.teci.world @AltonDooley @Hyolobrika (it may thus be ineffective on its own terms!) /fin

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika no. democracy does not mean near complete consensus or paralysis. that’s tyranny by the veto power of any small minorities. 1/

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika we created an antidemocratic tyranny on purpose (although we did not expect it to bind quite as strongly as it has in recent decades) to lock-in the form of democracy the Constitution establishes. we made amending the Constitution antidemocratically hard. 2/

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika bur Marbury v Madison gave us another way to amend the Constitution, through judicial reinterpretation. And that requires a mere majority among nine imperfect, ideological, corruptible individuals. /fin

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika Criminal law almost always cares about motive. Mens rea. Please tell me where any act you could call “democratic” removed consideration of motive from criminal law in the case of the President, but no one else. Please. I think the Supreme Court made it up all by itself. 1/

@volkris @realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @Hyolobrika Yes, we can democratically remedy this, but only by a Constitutional anendment, a bar so difficult, that requires such unanimity + consensus that it’s been decades since we’ve pulled one off. (Or, much more likely, by expanding this Court and having a do-over.)

The Supreme Court made this up. Whole cloth. Nothing in existing law prefigured this decision, especially the motive bit. The whole legal world was shocked by it. /fin

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika First, thank you for saying so, and I do apologize for getting exasperated. I promise that whatever I am doing, I am not arguing in bad faith. I have been in a crisis since last Monday, and my family might well end up emigrating because of this decision. Now let me address your counter. 1/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika In the decision there is actually an argument among the conservatives, between Amy Coney Barrett and John Roberts, on just this point. Coney Barrett dissents in part, specifically on the excluding motives part. She uses the example of bribery, quid pro quo. She asks, suppose a President is bribed to pardon. Pardons are within the "conclusive and preclusive" powers of the President. 2/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika So a pardon, per se, can never be a crime. But accepting a bribe to produce one certainly is. It's *quid pro quo*. ACB points out that we might see the *quid* (someone gave the President money), but unless the *pro* is established, it's not a bribe. 3/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika If examining the motivation for a pardon is out of bounds, how can you establish a connection between the *quid* and the *quo*? Again, a pardon alone is under the President's absolute discretion, can never be a crime in and of itself. So without motive, could the prohibition against bribing for a pardon ever be enforced? 4/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Roberts — extremely unpersuasively in my view — answers that the pardon itself is a public act. So, for example, if the wife of a Federal prisoner gave a big sum to a President or to his campaign, and then that prisoner was pardoned, perhaps that would be enough? 5/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Perhaps we can agree that is unpersuasive, because perhaps we have a shared low opinion of Bill Clinton and his ethics. 6/

screenshot from https://en.wikipedia.org/wiki/Bill_Clinton_pardon_controversy

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika We already know, I think, that the mere public act of a pardon subsequent to some nice "donations" is insufficient in practice to establish a bribe. In fact, this Supreme Court has dramatically tightened standards, clarified that only a clear quid-pro-quo is actionable, outright legalized after-the-fact gratuities to state and local officials. 7/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Note that neither Amy Coney Barrett nor John Roberts relied upon the possibility that motive might leak. Evidence of motive (I think!) already exists in Jack Smith's case against Trump. The Court does not consider it, I think because it's now inadmissible, under the may-not-inquire-into-motives standard. 8/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika But suppose evidence of motive was just brazenly public? A whistle-blower leaks a memo to the New York Times, in which a President (idiotically) instructs a pardon be issued in consideration of the spouse's loyal financial support. 9/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika I don't think, under this decision, that changes anything. The Court may not inquire. To bring a public New York Times article into evidence, for the prosecutor to subpoena from the Times a copy, to validate it by interviewing and examining its author or the reporter would be the court inquiring into motive. 10/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika And without some degree of validation, some degree of "inquiry", even what is fully public can only be rumor and hearsay to a court of law. I don't think the court would be able to take into account information about motive that "everybody knows", because converting common knowledge to vetted evidence would be an inquiry to far. 11/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika John Roberts seems to suggest that at least conjectures or allegations about motive might have a role (how else could the mere public act of a pardon become the *quo* of quid-pro-quo?), but i think a plain reading of "courts may not inquire into the President's motives" would also prohibit entertaining conjectures and allegations about motive. 12/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika And even if it did not, how could mere conjecture and allegation form the basis of any criminal prosecution? /fin

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika You also wonder, what if it's not a leak, what if the President himself states his motive on the public record somehow? Could courts at least use that, in deciding whether an act was an official act?

I don't know! 1a/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika The way I characterize this decision is not that it's automatic immunity for anything a President does. Trump, if he loses the election, might still be on the hook, because some of the allegations against him involve actions that may well be unofficial acts. 2a/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika What the decision is is a *roadmap* to Presidents who want to break the law and get away with it. It's fine to instruct your Attorney General to gin up a prosecution against a political opponent. Your discussions and prosecutorial decisions have absolute immunity. 2b/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Even with several of your too-charitable-I-think reading of a limitation in the taking-Care clause, there'd be no way to demonstrate that the prosecutorial decisionmaking was out of bounds without any ability of courts to inquire into motive, even when there is a credible allegation of lawbreaking. 2c/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika But Presidents can still do stupid stuff and get in trouble. If the President instructed his driver to mow down a Congressperson he disliked, Courts would probably pretty easily find that an unofficial act. 2d/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Openly confessing a corrupt motive for actions that would otherwise enjoy immunity I think falls into that category. Yes, there are still ways that a President can be stupid or careless and shed His immunity. But the decision presents a clear roadmap, which if followed, permits a President to act very flexibly without deference to general law, with no way for Congress to regulate or the courts to hold accountable. /2fin

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika So. Much of the decision concerns the distinction between official and unofficial acts. If the President's prosecutions are not in fact to "take Care that the Laws be faithfully executed", in pursuit of violators of law, then you might argue they are not "official acts" at all, and there is no immunity for whatever a President does that is not an official act. 1/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Suppose some prosecution is somehow established not be consistent with "tak[ing] Care that the Laws be faithfully executed". Would instructing an AG to pursue that constitute an official act because it takes the form of an official act (the President instructing a subordinate officer), or by virtue of its deviation from constitutional authority, could be deemed an unofficial act? I don't think the decision is clear. But. 2/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika But. The decision is very clear about how one might — or really might not! — establish that an act is not an official act. Let me show you another screenshot. 3/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Let's emphasize.

1. "In dividing official from unofficial conduct, courts may not inquire into the President's motives."

2. "Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law." 4/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika So.

Suppose you take the most charitable read of the text we discussed before, and claim that a prosecution that had no basis in "tak[ing] Care that the Law be faithfully executed" would be render it an unofficial act, despite appearing from the outside every bit like an official act. 5/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Then for a court to touch the President for that out-of-bounds prosecution, it would have to somehow be established that what appears to be a valid prosecution, based as all prosecutions are on an allegation that the law was violated, is not in fact that. 6/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika How, without "inquir[ing] into the President's motives" can you establish that the alleged violation of the law is not only baseless (thin prosecutions happen sometimes, that can't render a prosecution unofficial) but malicious? 7/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Even if you can credibly allege some violation of law by which the President is still ostensibly bound — perhaps the President was bribed to prosecute someone! — that can't weigh into the determination. You can't examine motive, and you can't examine a role in some larger crime. 8/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika If you want to read a limitation in the "tak[ing] Care" clause — a reading the decision does not support, because it grants Trump absolute immunity without suggesting the actions he is accused of fall anywhere near inside the "tak[ing] Care" clause — how in practical terms could you demonstrate that the prosecution was an "unofficial act", without inquiring into motive? /fin

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika ("Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law." is perhaps responsive to some of @volkris's suggestions of where a limitation might emerge, very early in this thread.)

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika When the first screenshot (regarding prosecutions and the Attorney General) refers to prosecutorial decisions, it refers to all actions by the President with respect to prosecutorial decisions. It is not clear to me whether that would bring in prosecutorial decisions by, say, a DA making those decisions on his own. Those might or might not still be regulable! 1/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika But the text is quite clear that a President's actions with respect to prosecutions and prosecutorial decisionmaking, including and discussion or instruction He gives directly to subordinates, is within the special domain, the sphere of "conclusive and preclusive" authority that is beyond Congress and the courts. /fin