- However bad you think it is, it's worse. Remember when Trump's lawyers argued that he could SEAL Team
six his political rivals, and we all laughed because that's a preposterous
thing for anyone to argue, and absolutely no serious person could possibly believe that the Constitution or the laws of this country would allow that to be the rule? Well, the Supreme Court just said,  Hold my beer while I
assassinate my political rivals. - [Sonia] The President is
entitled for total personal gain to use the trappings of his office. That's what you're
trying to get us to hold. - Yes, the Supreme Court has effectively given law-breaking presidents, and we're not singling
any one law-breaking president out or anything, could be any felonious president, almost absolute immunity
from criminal prosecution. And where the Court did
not grant outright absolute immunity, it gave presumptive immunity and procedural protections that might as well have been absolute immunity.

And while unofficial acts of the President still received no immunity, the crap cherry on top of this crap sundae is that even though a president now has immunity from criminal prosecution for official acts as president, a prosecutor cannot even use official acts as evidence in a prosecution over unofficial acts, which makes prosecution of some unofficial acts virtually impossible. Whether you are a Republican or a Democrat, this is a terrible decision for democracy, possibly a top five worst Supreme Court decision of all time. Happy July 4th, everyone! But just how bad is it? Well, don't take my word for it. Justice Sotomayor says,  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 interest of the nation.

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 the military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the president violate the law, let him exploit the trappings of his office for personal gain. Let him use his official power for evil ends because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority's message today. Justice Sotomayor concludes that the opinion marked a sea change in the relationship between the people and the President.  In every use of official power,

the President is now a king above the law. But how did we get here? Well, until now, executive immunity was a court-created doctrine that shields Presidents from most civil lawsuits involving conduct that occurred during their presidential terms. There's no explicit constitutional text granting the president immunity, but in Nixon v. Fitzgerald, the Supreme Court ruled that a president is entitled to absolute immunity from legal liability for civil damages based on his official acts, including acts on the outer perimeter of his duties. The Court defined a President's official duties quite broadly to prevent future presidents from being sued for virtually every allegation that an action was unlawful or was taken for a forbidden purpose. The Court explained that it was settled law that the separation of powers doctrine does not bar every exercise of jurisdiction over the President of the United States. To determine whether a particular type of suit against a President or a former President could be heard, a court must balance the constitutional weight

of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch. Indeed, in Clinton v. Jones, the Supreme Court found that under that rubric, the President does not have immunity from civil suits for conduct before they became President. So, until now, virtually every lawyer and judge in the country assumed that while executive immunity would shield civil lawsuits because the President could be sued by almost anyone in the country over almost anything, that criminal prosecutions would be different. Why? Because it's way more important that a president be bound by criminal law and not commit heinous criminal acts even in service of their duties. Plus, there are way more safeguards against criminal prosecution than civil suits. But Trump moved to dismiss his DC prosecution on immunity grounds. He lost to the trial court and appealed the decision. Judge Tanya Chutkan stayed the criminal proceedings pending the outcome of the appeal. The DC Circuit upheld the lower court's ruling.

 The former President Trump has become citizen Trump with all the defenses of any other criminal defendant, but any executive immunity that may have protected him while he served as President no longer protects him against this prosecution. The Circuit Court ruled that Presidents are not above the law.  The President has a constitutionally mandated duty to take care that the laws be faithfully executed. As part of this duty, the President is responsible for investigating and prosecuting criminal violations. It would be a striking paradox if the President who alone is vested with the constitutional duty to take care that the laws be faithfully executed were the sole officer capable of defying those laws with impunity. The Circuit Court's decision was widely praised as the well-constructed opinion that came to the only logical conclusion, but then it arrived in the Supreme Court. (playful music) The top line ruling from the majority of the Supreme Court is this: Presidents cannot be indicted based on conduct for which they're immune from prosecution.

Based on the standard
that this opinion creates, which we'll talk about in a second, Justice Roberts writing for the six-Justice majority, kicked things back down
to the trial court. On remand, the district court must carefully analyze the indictment's remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the
district court must ensure that sufficient allegations
support the indictment's charges without such conduct. And the opinion starts with the premise that presidents have lots of power. Powers they wield exclusively and do not share with Congress. The court describes the
President's core powers as taking care that the laws
are faithfully executed, commanding the military
and dismissing officers he has appointed and pardoning people who have committed crimes. So the court created three buckets: core official acts, non-core official acts, and unofficial acts. But as you'll see, there's
very little difference between the official acts and very little will qualify
as an unofficial act.

And the court states, We conclude that under our constitutional structure of separated powers, the nature of presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President's exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official acts, he's also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute or instead whether a presumptive immunity is sufficient. So with respect to the exercise of core powers, the President is apparently absolutely immune from any criminal prosecution related to using those powers. And the court goes on to note that in cases involving Richard Nixon and Aaron Burr, judges recognized that the President has a presumptive privilege to withhold certain papers and communications. Though oddly in both of those cases, Presidents Nixon and Jefferson were compelled to produce records and recordings.

because of the public interest in those records was strong enough to overcome the presumptive privilege. However, the court sees the Trump case differently because Trump is the subject of a criminal prosecution. Criminally prosecuting a President for unofficial conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession as in Burr and Nixon. The danger is akin to indeed greater than what led us to recognize absolute immunity from civil damages liability, that the President would be chilled from taking the bold and unhesitating action required of an independent executive. So the argument goes, if a President could face criminal prosecution for his official acts, including communications with his aides, he might be unable to perform his official duties because he fears prosecution. So the court concludes, Taking into account these competing considerations, we conclude that the separation powers principles explicated in our precedent necessitates at least a presumptive immunity.

from criminal prosecution for a President's acts within the outer perimeter of his official responsibility. Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch and to enable the President to carry out his constitutional duties without undue caution. But what you'll see is that the majority continually only looks to one side. They believe that presidents should be free, but what about the other side? Sure, there are reasons why we want a President to have the ability to take action, but we also have some damn good reasons why we might want the President to hesitate if not withhold action entirely when it comes to criminal violations, and the majority just simply doesn't address the other side. So the majority sets up a paradigm that first examines whether the conduct involved one of the President's core powers. If it does, the President is absolutely immune from criminal prosecution. If it does not implicate a core power, then the courts have to decide whether the President's acts are

official or unofficial. If it's an official act, the President is presumptively
immune from prosecution. If it's an unofficial act, then the President is not immune. So how do we determine
if the President's action is part of their core
responsibilities or not? Well, we don't know. There's no standard in this opinion. They are apparently,
according to this court, whatever powers the president has that are not shared with other
branches of the government. But it's not like those
powers are just listed in the Constitution. And other than the few powers that were explicitly
enumerated by this court, including removing people from office and commanding the military, we have no idea what might be considered a core power or not. But even those enumerated
core powers are terrifying because the court specifically
said commanding the military. So if you take one thing away
from this video, it's this, because commanding the military is apparently a core presidential power and use of core presidential power

is absolutely immune from criminal prosecution. Any use of the military by the President, including using the American military on American soil, is absolutely immune from criminal prosecution. And if you take two things away, it should be that the President can do anything related to the DOJ, create sham investigations, sham prosecutions, fabricate evidence. They can do any of that, and they are absolutely immune because that's a core function. And a few really good commentators put it this way: the office of the president is like a gun. When you get elected president, you have an unfettered right to use that gun any way that you want to. Your motives and purposes for using that gun are completely irrelevant. You are the President, use the gun however you want. Criminal law does not apply to your use of that gun, and that is why multiple Supreme Court justices are concerned about a President's SEAL team six-ing their political rivals. But some official acts are only presumptively immune.

So how would a prosecutor overcome the presumption of immunity that comes with non-core official acts? Well, again, we have no idea. The court doesn't provide a standard. The only thing the court says is that, At a minimum, the President must be immune from prosecution for an official act unless the government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the executive branch. This is barely a limit. There's almost no reason to distinguish between core and non-core official acts if there's no limit on what can be an official act that receives immunity. This language is from the original Fitzgerald balancing test but turned on its head. Instead of balancing the importance of the intrusion, the court simply says if there's any danger, any danger at all of intrusion, there is immunity that attaches to that action. As Justice Sotomayor said in her dissent, No dangers, none at all.

It is hard to imagine a criminal prosecution for a President's official acts that would pose no dangers of intrusion on presidential authority in the majority's eyes. Nor should that be the standard. Surely, some intrusions on the Executive may be justified by an overriding need to promote objectives within the constitutional authority of Congress. Other intrusions may be justified by the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. According to the majority, however, any intrusion on Executive power is too much. When presumptive immunity is this conclusive, the majority's indecision as to whether official acts immunity must be absolute or whether, instead, presumptive immunity is sufficient, hardly matters. Now I've seen a few legal pundits say that this decision is no big deal because immunity only attaches absolutely for the exercise of core presidential powers, despite the fact that the military is almost certainly core power and lets the President drone strike their rival.

but it's okay because other
official acts are only presumptively immune and
therefore can be prosecuted. But based on this language,
that's not the case. Given that the only official acts that can be prosecuted are ones where there is absolutely no danger of intrusion into the authority and functions of the Executive Branch, that category is vanishingly small. Worse, you can't look to
the President's motives to determine whether the
act was official or not. Now even if you're President and you murder your political rivals and receive protection, you'll still want a good lawyer. But if you want a great lawyer, my law firm, the EagleTeam can help. If you've gotten in a car crash, suffered a data breach, especially if you got one
of those data breach letters saying your information
might have been leaked or dealing with a workers' comp or social security issue, we can represent you or help find you the right attorney because it's so important to talk

to a lawyer right away so you can get the best representation and find out what your options are. So click on the link in the description or call the number on screen for a free consultation with my team. 'Cause you don't just need a legal team, you need the EagleTeam. So click below. Okay, okay, sure. But unofficial acts are not immune, right? Well, hold on. First, how would we distinguish
a President's official actions from his unofficial ones? Well, the Court says, When the President acts pursuant to constitutional
and statutory authority, he takes official action to perform the functions of his office. However, the court then says that official acts are not constrained to the president's constitutional
and statutory authority. The majority says, And
some presidential conduct, for example, speaking to and on behalf of the American people
certainly can qualify as official conduct when
not obviously connected to a particular constitutional
or statutory provision. For those reasons, the immunity we

have recognized extends to the outer perimeter of the president's
official responsibilities, covering actions so long as they are not manifestly or palpably beyond his authority. So if you think that sounds like a very broad description of presidential official
acts, you'd be right. I would be challenged to come up with a broader definition. But surely plotting to overturn an election result would be manifestly and palpably beyond the
president's authority, right? Wrong. The Supreme Court said,  In dividing official
from unofficial conduct, courts may not inquire into
the president's motives. According to Roberts, even asking the question would cripple the Executive Branch's
ability to function. And it gets worse. According to Justice Roberts,  Nor may courts deem an
action unofficial merely because it allegedly violates
a generally applicable law. So if a President's action violates a law, that doesn't mean he can be prosecuted. - Well, when the president does it, that means that it is not illegal.

- As Justice Jackson points out in her dissent, the government will have difficulty proving whether an act is official or unofficial, since it can't introduce evidence of the President's motives. That's right, the Court says you can't look to the President's motives to determine whether an act is official or unofficial either. You know, for reasons. The only question is whether the President has the power or not. And Justice Jackson points out the problem with this means only or authority only approach. In her dissent in a footnote, she says, To fully appreciate the oddity of making the criminal immunity discrimination turn on the character of the President's responsibilities, consider what the majority says is one of the President's conclusive and preclusive prerogatives. The President's power to remove those who wield executive power on his behalf. While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President

has the option to remove
the Attorney General by say, poisoning him to death. Put another way, the issue here is not
whether the President has exclusive removal power, but whether a generally
applicable criminal law prohibiting murder can restrict how the President
exercises that authority. And the implied answer in that footnote is that the President is
free to poison any member of their staff or cabinet because they have authority
to remove that person. They've got the power,
so any means whatsoever would be an official act. And I'm not being histrionic here. Justice Sotomayor says the majority allows the President to send SEAL Team six to kill their political rival. Justice Jackson says the
majority allows the President to poison any member of their staff. This isn't just me, these are the dissenting
justices on the Supreme Court. This is what I meant
when I said this was bad. And this policy argument
on which they 100% rely.

stems from the idea of
separation of powers, but it also turns that
idea completely on its head because part of separation of powers is checks and balances, and here they've organized things in a way that the Executive is completely unchecked by either of the other
branches of government. And while the majority
opinion is 43 pages long, it never got around to
defining unofficial acts. So while it provides tons of guidance on what is an official act and is therefore immune from prosecution, they give zero guidance whatsoever on what is an unofficial act and therefore would be prosecutable. All we know is that official
acts, which are immune, are anything within the outer perimeter of the President's
official responsibilities, covering actions so long
as they are not manifestly or palpably beyond his authority. That's almost anything a President does. So the Court has also made the official versus unofficial distinction
almost meaningless. As Justice Sotomayor says,  In fact, the majority's dividing line

between official and unofficial conduct narrows, the conduct considered unofficial almost to a nullity. It says that whenever the President acts in a way that does not manifestly or palpably beyond his authority, he's taking official action. It then goes a step further in dividing official from unofficial conduct, courts may not inquire into the president's motives. It is one thing to say that motive is irrelevant to questions regarding the scope civil liability, but it's quite another to make it irrelevant to questions regarding criminal liability. Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority's test, if it can be called to test, the category of presidential action that can be deemed unofficial is destined to be vanishingly small. So to help understand all these distinctions, the great people over at Just Security put together this great chart.

Starting from right to left, if there is official
conduct, we have to ask, Is it within the core
constitutional authority? If it is, there's absolute
immunity, no prosecution, and you can't use it as evidence. If it's not core constitutional authority, you have to ask, Does it pose any danger of intrusion on the authority and functions of the Executive Branch? If it does, no prosecution,
can't use it as evidence. If it doesn't pose any
dangers of intrusion on the authority and functions
of the Executive Branch, then there is no immunity
and you can use it as evidence in a prosecution. Then going back up to
the top of the chart, if the conduct is a
hundred percent unofficial, then yes you can prosecute it but remember, you cannot
use any official acts or anything that was
deemed an official act as evidence in that particular trial. Now when courts address
constitutional questions, they're generally bound by
principles of judicial restraint.

Now the consequences of this decision are not just about Trump. It applies to all presidents for the foreseeable future. And that's why it's important to understand the criticisms of this decision and why it's so dangerous. So let's start with one of the Court's first big leaps: the idea that immunity shields a President from criminal as well as civil penalties. Why did the majority grant such sweeping immunity? Well, according to the majority, The purpose of a vigorous and energetic executive, the Framers thought, was to ensure good government, for a feeble executive implies a feeble execution of the government. They pull that line out of context from Federalist 70, and that's about it. You apparently can't have any enfeeblement whatsoever of the President, even though every President for the last 250 years has assumed they could be criminally liable for at least some of their conduct. But that's it, that's all the support they have.

It's just a policy argument that a vigorous, unencumbered presidency is good. Therefore, almost full immunity. QED. From proclaimed originalist and textualist, this is honestly shockingly dishonest and hypocritical. Because we're dealing with the Constitution, Congress can't pass a law that says the President will be criminally liable for virtually anything, and the Judiciary can't prosecute the President. So the President is unchecked, and the majority opinion doesn't even address the public's interest in not having a criminal President. As Justice Sotomayor points out in her dissent, the court's precedent suggests that Presidents do not and should not have broad immunity from criminal law. At the same time, the public interest in federal criminal prosecution of a former President is vastly greater than the public interest in a private individual civil suit. All nine justices in Fitzgerald explicitly recognize that distinction. The five-Justice majority noted

that there was a greater public interest in criminal prosecutions than
in actions for civil damages. Chief Justice Burger's concurrence accordingly emphasized that
the majority's immunity was limited to civil damages claims rather than criminal prosecution. The four dissenting Justices agreed that a contention that the President is immune from criminal
prosecution in the courts, if ever made, would not be credible. And the ramifications of
declaring the President above criminal law are huge. Justice Jackson explains, Put simply, immunity is exemption from the duties and liabilities imposed by law. In its purest form,
the concept of immunity boils down to a maxim, The king can do no wrong, a notion that was firmly rejected at the birth of our republic. And as Justice Sotomayor explains, The majority makes three moves that in effect completely insulate Presidents from criminal liability. First, the majority
creates absolute immunity for the President's exercise of core constitutional powers. This holding is unnecessary on the facts of the indictment.

and the majority's attempt to apply it to the facts expands the
concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all official acts. Whether described as
presumptive or absolute under the majority's
rule, a President's use of any official power for any purpose, even the most corrupt, is
immune from prosecution. That is just as bad as it
sounds, and it is baseless. Finally, the majority declares that evidence concerning acts for which the President is immune can play no role in any criminal
prosecution against him. That holding, which will prevent the government from using a President's official
acts to prove knowledge or intent in prosecuting
private offenses, is nonsensical. Argument by argument, the majority invents
immunity through brute force. Under scrutiny, its arguments crumble. To start, the majority's
broad official acts immunity is inconsistent with text, history

and established understandings
of the President's role. Moreover, it is deeply wrong even in its own functionalist terms. Next, the majority's core immunity is both unnecessary and misguided. Furthermore, the majority's illogical evidentiary hearings is unprecedented. Finally, this majority's project will have disastrous
consequences for the presidency and for our democracy. The main takeaway of today's decision is that all of a President's official acts defined without regard
to motive or intent, are entitled to immunity that is at least presumptive
and quite possibly absolute. Whenever the President
wields the enormous power of his office, the majority says the criminal law, at least presumptively, cannot touch him. The official-acts immunity
has no firm grounding in constitutional text,
history, or precedent. Indeed, those standard grounds for constitutional
decision-making all point in the opposite direction. No matter how you look at it, the majority's official-acts immunity is utterly indefensible. Now the six conservatives in the majority,

all of them self-describe strict textualists, were really offended by this comment. They say that, A specific textual basis has not been considered a prerequisite to the recognition of immunity. And Justice Roberts tries to rebut Sotomayor by noting that the Constitution is silent on all matters related to prosecuting ex-Presidents. Conspicuously absent is the mention of the fact that since the founding, no President has ever faced criminal charges, let alone for his conduct in office. But that's entirely Sotomayor's point. She says the Constitution's silence is noteworthy in at least three respects. First, the Framers clearly knew how to provide for immunity from prosecution because they did give narrow immunity to legislators via the Speech or Debate Clause. She says, They did not extend the same or similar immunity to Presidents. This is classic textual interpretation. If you're bound by the Constitution

and the Constitution grants
immunity in some places, but is silent as to
immunity in other places. That immunity doesn't exist. Her second point is that
some state constitutions did provide express immunity
for sitting governors, but the Constitution did not. Again, calling into question the reason the Framers did not extend that privilege
to a sitting President. And the third contention was that the impeachment judgment clause cut against the Court's position. That clause presumes the availability of criminal process as a backstop by establishing that an official impeached and convicted by the Senate shall nevertheless be liable and subject to indictment, trial, and judgment and punishment
according to law. That Clause clearly contemplates that a former President may be subject to criminal prosecution
for the same conduct that resulted or could have resulted in an impeachment judgment, including conduct such as bribery. So there's no other way to put this. This is a horrifying opinion and I personally worry about
the future of this country.

For one reason, we can't change this. There's no one to appeal to. Congress can't fix this with legislation. We can't appeal to the courts because the highest court in the land says that the immunity exists and it's almost always absolute. The Constitution is the highest law of the land. And it's effectively like the Supreme Court has amended the Constitution to include an immunity that has never existed before, with zero basis in the text and history of the Constitution. All we can do is hope that future presidents won't use this power. This is horrifying not only for those that think former President Trump committed crimes while in office, but for anyone that believes the President should be bound by the law. As of today, for many, many actions, regardless of their inherent criminality, the President is immune. And even if you believed every crazy thing that has been alleged about Biden and the Biden crime family, this decision would immunize almost every allegation that has been levied against them.

And of course, the shadow of Trump's actions looms large, but I wouldn't want this opinion to come down during any presidency, nor does any serious jurist think that this should be the law going forward. No president should have this immunity. No President should have this power. And perhaps someday the Supreme Court will scale back this opinion and provide reasonable definitions, but as it stands now, current and future presidents have the powers of a king. So yeah, this is bad and I frankly can't think of anything worse. And that's also reflected in the news reporting as well. What's interesting is that the Supreme Court decision has been covered extensively by over 400 news outlets. 33% of the reporting coming from the Left and only 17% coming from the Right. But if you compare the headlines, you'll start to see some interesting framing emerge. On the Left, you have a lot of outlets saying that Trump was granted immunity.

on the Right, outlets tend
to draw the distinction between official acts and private acts. And depending on which
article you see first, your view of the story can
be completely different. If you read the
Left-leaning sources first, you might think the Presidents
have complete immunity and only focus on the
potential negative outcomes, which frankly is more accurate. And if you read the ones on the Right, you might fail to see any of the potential repercussions from this decision. Now all this is possible thanks to today's sponsor, Ground News, a website and app developed
by a former NASA engineer on a mission to give readers
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One of my favorite parts is their Bias Comparison feature, which highlights specific differences in reporting across the political spectrum. This can be especially helpful when reading stories from sources you've never heard of, which could be run by total nut jobs. And I also love their Blind Spot feature, which shows you stories that were underreported by either side of the political spectrum. And it helps explain why we often talk past each other and some people seem hyperfocused on what seems like nonsense, often because some random blog posts went viral among certain groups. But that's why Ground News is my favorite way to get the news. And as a LegalEaglet, you can save 40% off the Ground News Vantage Subscription by clicking on a link that's on screen or down below. This subscription gives you unlimited access to every feature, including the Bias Insight tool and Blind Spot feed. And by subscribing, you'll support an independent news platform working to make the media landscape more transparent.

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Trump Is Immune

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