‘Official Acts’ are Precisely What Matter Most

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One of the many things we have going for us at TPM is that we have two really talented reporters covering different aspects of the world of the law and the courts and we have an executive editor who is himself a lawyer, which adds an additional layer of sophistication. I’ll leave the details of the Court’s decision to them. But I can speak broadly to the nature of president power. This decision creates two classes of presidential immunity for official acts, one absolute, the second presumptive. This is much closer to total immunity than many seem to understand. It is precisely the President’s official actions, actions taken with official powers, that we’re most concerned about. We’re not worried that the President will steal a toaster. If a President beats their spouse that is an outrage and he or she should be held accountable to the full extent of the law. But that doesn’t threaten the state itself. It is precisely official acts which matter most with a President and where legal accountability is necessary because the Constitution gives Presidents such vast powers and their conferral is personal and will-based in nature.

I saw someone say: I thought we all knew this? A President can order the killing of a foreign national. For you or me that would be a crime. For the President it’s not. Could someone have indicted Barack Obama for ordering the killing of Osama bin Laden? If this is what we’re worried about it falls into the category of things that don’t seem to have been a problem in the past. In my mind, that operation, and even many others that are uglier and perhaps wrong, are well within the President’s war powers. It’s not immunity. It’s a crime. Point being that it certainly makes sense that a President or former President should have the right to argue in some preliminary hearing type context that certain actions are simply presidential acts not subject to criminal law if we’re imagining kinds of frivolous nuisance prosecutions. Trying to remain in office after losing an election is very clearly not a legitimate presidential act or anything the Constitution provides sanction to do.

This does what it looks like. And I would argue that even though this is clearly not blanket or absolute immunity that it’s close enough that with good lawyering you’re all but there.

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