@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika See the screenshot just added. Once the Court determines something is a "conclusive and preclusive" Constitutional authority, Congress is disabled from acting upon it, and the Courts have no power over it. The first screenshot we discussed (which comes later in the decision than the second) places prosecutorial decisions among "conclusive and preclusive" Constitutional authorities.

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika I'm adding the second screenshot again, because it seems to be diverted from the thread.

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Please read the separation of powers discussion earlier. I don’t want to repeat myself. 1/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika The basis for the portion of the decision regarding DOJ and prosecutorial decisions — it’s in that screenshot! — is that prosecutorial decisions fall under the “‘conclusive and preclusive’ Presidential authority”, which no laws by Congress or acts by courts can regulate, the “special province” of the Executive. 2/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Yes. Every prosecution is allegedly against “defendants who violate the law.” Every Federal prosecution is performed under the President’s authority to “take Care that the Laws be faithfully executed.”

Every *malicious* prosecution alleges a violation of the law, and is pursued under the authority of the “take Care” clause. Every one. 1/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Under this decision, no one, no law, no Court, can review whether any allegation that the law has been broken has any basis. A President and his Attorney General can simply make up an allegation of a violation of law and prosecute it. 2/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika As requested, here is the paragraph of the decision that says that. /fin

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika No. Prosecutors never know whether crimes have been committed. They allege, based on lesser or greater evidence. The accused is innocent until proven guilty. Prosecutorial decisions are not restricted to which "crimes that have been committed" to prosecute. You've made that up entirely. It's nowhere in the decision, or my screenshot of it, and it couldn't be, since there is no certain crime before the prosecution. 1/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika Where in that screenshot (or elsewhere in the decision) do you think you see that kind of restriction? You don't. You are making it up, imputing it. 2/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika What distinguished malicious prosecution from other prosecution isn't prosecution where "there is no crime". Malicious prosecution is prosecution where the evidence is weaker than it ordinarily would be to prosecute, or perhaps even nonexistent, motivated for some purpose other than evenhanded enforcement of the law. 3/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika The decision protects those prosecutions, because it claims no law from Congress can regulate prosecutorial choices at all, including the motive for those choices, their even-handedness, or their evidentiary basis. 4/

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika You and @volkris are intent on adding caveats and limitations to the decision that simply do not exist in its text or its logic. It's one way to cope, I guess. /fin

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika if it sounds fine and dandy, well your opinion is your prerogative.

But i hope we share an understanding of the holding. Prosecutorial decisions are the sole province of the President, not regulable by Congress' laws. So there can be no such thing as an "illegal" or "invalid" prosecution. The President can prosecute whomever, whyever He chooses, however unfounded or "malicious" the basis for those prosecutions might be.

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika The President can face no legal accountability for those choices. No public or judicial process can inquire into their motivations, no Congressional act can regulate them in any way.

I think that's pretty fucking scary, and deeply threatening to any social order other than authoritarian tyranny.

@realcaseyrollins@social.teci.world @AltonDooley @realcaseyrollins@noauthority.social @volkris @Hyolobrika But sure. If you think absolute immunity for even malicious prosecution is fine and dandy, you my good friend are just as entitled to your opinion on that as I am to mine.

I am glad we agree on the facts of what was held by the Supreme Court of the United States, one week ago.

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika OK. Here's the key stuff:

"the Executive Branch has 'exclusive authority and absolute discretion' to decide which crimes to investigate and *prosecute*...Investigative and *prosecutorial* decisionmaking is “the special province of the Executive Branch,”…and the Constitution vests the entirety of the executive power in the President, Art. II, §1… *For that reason,*…" 1/

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika "Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority."

The emphasis (the *xxx* signalling italics) is mine. 2/

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika Note this does not refer merely to discussions. It refers specifically to prosecutions and prosecutorial decisionmaking. The President can decide who to prosecute. The Constitution, Roberts claims, vests all decisionmaking power surrounding prosecutorial choices in the President, as a "special province". *For that reason* it falls within the "'conclusive and preclusive' Presidential authority" + commands absolute immunity. 3/

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika This is one of the key logical themes of the entire decision: Some Executive authorities are deemed to be shared with Congress, but others to be solely the province of the Executive, personified by the President. Where they read Constitutional authority not to be shared, Congress — the maker of laws — cannot regulate Him. *Not* providing immunity in this sphere, subjecting the President to Congress' laws… 4/

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika would violate the Constitution's "separation of power" principle, in the Court majority's view. The President has "absolute immunity" in these domains because acts of Congress or the Courts — laws and the infrastructure of their enforcement — simply have no power to reach this "special province", this "conclusive and preclusive' Presidential authority". 5/

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika And prosecutorial decisions, not just discussions, not just personnel decisions, are proclaimed to be within this domain. Congress and its laws have no authority to regulate whom the President chooses to prosecute, says the majority, so of course Congress' laws can have no authority here. 6/

@realcaseyrollins@noauthority.social @realcaseyrollins@social.teci.world @AltonDooley @volkris @Hyolobrika The domain of prosecutorial decisionmaking, the decision very clearly proclaims, is within the sphere of absolute Presidential immunity that the decision here and elsewhere defines. /fin

@John @GGMcBG An advantage of that is the remainder of the Supreme Court hasn't yet decided on whether Biden would have "absolute" only "at least presumptive" immunity for ordering the armed forces to hold Thomas at Guantanamo. That case might propel them clarify in the direction of "presumptive", and establish limits. 1/

@John @GGMcBG Particularly if John Roberts and Samuel Alito were in Guantanamo as well, a majority Supreme Court decision revisiting these questions might be quite protective of Americans' civil liberties and help get Biden imprisoned for the rest of his long life for what in fact would be an atrocity and abuse of power. /fin

@volkris @Hyolobrika @AltonDooley

No. Courts must always throw out cases that are on their face "invalid (malicious or otherwise faulty)". The problem is, when a lawsuit or prosecution occurs, there is often a dispute over whether a suit is "invalid (malicious or otherwise faulty)". 1/

@volkris @Hyolobrika @AltonDooley Courts then must inquire into the dispute as a factual matter.

Immunity is quite distinct.

"The essence of immunity 'is its possessor’s entitlement
not to have to answer for his conduct' in court."

That's John Roberts, from the decision. That is quite distinct from saying Courts must examine a prosecution in any way at all, and dismiss the bad ones. It says Courts have no business examining or evaluating an allegation at all. That is what immunity means. /fin

@marick I don't disagree with anything that you've written. We can sit back, from a distance, and say, well, the Etruscans fell because their culture was suffused with a playfulness and passivity that rendered them vulnerable to Romans' vigor.

(Note: I am just making shit up. I know nothing about the Etruscans. Just an example.) 1/

@marick But when we speak of the present, our words are not merely descriptive, referential. They are instrumental. They have consequences. 2/

@marick If, a thousand years from now, historians look back upon deep cultural factors within the US, like some unconscious reflex towards slavery dooming us to oscillations between repression and internal violence, great. That might (I hope not!) turn out to be the best, most accurate history. 3/

@marick But in the present, history is ours to make, and that history is one we should strive not to. We can morally entertain the hypothesis that the US is still culturally a slave state only if in the next breath we are considering how to use that hypothesis to remedy things. It's certainly no good to be in denial about what is difficult and deep in our culture. 4/

@marick But, if in any sort of public comment you say some awful result is down to the character or nature of the electorate and leave it there, what have you offered? I'll tell you. You've offered an apology, and excuse, for all of those among us who engage and have agency, and especially for people in power who don't do so poorly under the electorate's putative deficiencies. 5/

@marick Public attributions of causality are not academic musings. They are interventions. They are a form of political action. If this was the voice of the people, implicitly what you are advocating is *shrug*. If it was an artifact of the electoral system by which the voice of the people was constituted, then of as constituted the voice of the people seems bad, then you are arguing for electoral reform. 6/

@marick There is in fact no definitive voice of the people. There is no such thing as "the culture" or "deep roots". These are things we conjecture, project, might have some degree of reality in social consequences, but the extent of that degree is unknowable. 7/

@marick Every time "the voters" or "the culture" done it is your simplification, you are not saying anything meaningfully true (or false). You are excusing yourself, and people in power, attributing causality to something as inexorable as the tide to facts and events which in fact are social constructions which institutions and influential individuals have tremendous capacity to shape. 8/

@marick Yesterday I had the very painful experience of listening to Sarah Isgur's take on Trump v. United States. She is among the worst of the "blame the voters" pundits, she does it all the time. 9/

@marick Don't like Trump? Has nothing to do with an electoral system that reliably and predictably yields unpopular choices. That's who the voters vote for! Don't like a paralyzed Congress made of buffoons who seek the spotlight and performative cultural controversy rather than legislating? That's who the voters vote for! 10/

@marick The institutional context that in fact is malleable — single-winner, first-past-the-post elections that create an electoral binary that encourages negative partisanship; extensive partisan gerrymandering — all elided. "Ultimately responsibility has to lie with the voters". Responsibility *cannot* rely with "the voters". "The voters" are not an entity to which agency and accountability attach. It's like blaming atoms for the temperature. 11/

@marick Our job, as politically engaged people, is to create context and circumstances under which voters as they are provide information in ways our institutions will use to make decisions that are high-quality and virtuous and will continue to support voter support. 12/

@marick That last is a constraint for institution-builders, not a question for citizens. Voters don't meaningfully choose collapse or revolutions. It's motherfuckers like us who engage and fail (or worse, engage mischievously) who are to blame when those events occur. 13/

@marick Isgur — I want to vent — gave the ultimate Take. We should not be so upset about the Trump v. United States. When countries collapse to authoritarianism, she say, the whole system gives way. It's not because the judiciary fails to hold the government to account. She describes it as just a kind of... poof! So eliminating accountability for the US' executive isn't a big deal. It wouldn't be the dealbreaker, right? 14/

@marick This isn't exactly the same as a "the voters done it" claim, but it's isomorphic, parallel. Here we have a very specific institutional restructuring that obviously might contribute to enabling authoritarianism, for which specific people — whom Isgur knows! has worked with! her friends! — are responsible. 15/

@marick The political coalition she belongs to benefits from *not* understanding accountability in an institutional and accountable way. (Because they are the institutions that would be reformed, and many of the people that should be held accountable!) 16/

@marick So what does she do? She tells "deep" facially plausible stories about how we should understand social causality that remove agency and responsibility from people and institutions with actual agency. She does not *want* virtuous reforms (at least her career-masters do not), so her business is constructing explanations for social affairs that sound wise but occlude the possibility of reform. 17/

@marick Yesterday's story was not exactly "blame the voters". But it's parallel, and her goto. She hoists responsibility on the voters all the time, even though there's no plausible way to treat voters *en masse* as any kind of responsible agent. 18/

@marick I'd ask you to pay attention to how "it's the voters" or "it's something deep in our culture" actually gets used in public discussion. Some of it is just a bromide by idiots employed to write columns who've nothing useful to say. But much of it is quite canny. It's neoliberalism's TINA, there's nothing to be done, it's not my or my political coalition's fault, it's the voters. That's the right-tilted version. 19/

@marick There's a left-tilted version, just as bad, that says the fault is the public's, so a revolution against the public's interest, even an oppression of the public, some authoritarianism is justified, because if you gave "the public" what it "wants", it would want bad things. 20/

@marick No version of this rhetoric, except a very provisional "let's-understand-what-might-be-hard" while we are addressing institutions without blaming voters, is useful or wise. And nothing in social affairs is "true" in the sense we must defer to it even if deferring to it would yield bad consequences. /fin