exist Trump v. United States, the actual distance between the majority and the opposition is not far. As Judge Barrett’s concurrence noted, there was “substantial agreement” on certain issues. Justice Sotomayor dissented, writing that “the idea of narrow core immunity may have some intuitive appeal in cases where the issue is actually raised.” The disagreement really depends on how the chief justice chooses to address other question. To this end, dissidents have chosen very strong rhetoric to illustrate how misguided the majority opinion is.
Three rhetorical themes repeated: abuse of power, personal gain, and corruption.
firstJustice Sotomayor mentioned the concept of “abuse of power” three times:
- Ultimately, most people just pay lip service to “[t]The president who is responsible for enforcing federal criminal laws is not above them,” but then it places the former president outside the reach of federal criminal laws because anyone can be subject to federal criminal laws. abuse of official power.
- According to most people’s opinions (but not Trump’s), a former president’s abuse of power His behavior was so egregious and offensive even to members of his own party that he was impeached in the House and convicted in the Senate, but he is still entitled to “at least presumptive” criminal immunity for these actions .
- Second, the majority’s new model of presidential accountability undermines the constraints of the law, which may have a deterrent effect on future presidents. abuse of powerto the detriment of all of us.
Old readers may still remember that the premise of the first impeachment of Trump was “abuse of power.” Seth Barrett Tillman and I acknowledged that “abuse of power” could form the basis for articles of impeachment, but we explained that the term is difficult for politicians to define. I observed in New York Times:
The House is seeking to expel Trump because he acted “for personal political gain rather than for legitimate policy purposes.” Trump’s lawyers responded, “Elected officials almost always consider the impact their actions may have on the next election.” The president’s lawyers are right. This behavior does not constitute an abuse of power.
Politicians pursue what they believe to be public policy while also worrying about their own political futures. Otherwise, lawful conduct, even if it is clearly politically motivated—but does not cross the threshold of personal political interests—does not constitute an impeachable “abuse of power.”
Justice Sotomayor often talks about the concept of “abuse of power,” but I think this framing creates more problems than it solves. Whether this power is “abused” is a cycle. If the president does have “core” power, then it is immune to repercussions; he does not abuse it, he exercises it. Furthermore, determining whether power has been abused will depend largely on an assessment of the president’s motivations and his policy preferences. This concept cannot be defined by any neutral principle.
secondJustice Sotomayor reiterated that the president cannot act for “personal interests.”
- When the president uses the power of his position Self-interest Or as part of a criminal scheme in which everyone in the country has a stake in the criminal prosecution. Most people completely ignore this most important benefit.
- Let the president break the law and use the symbol of his office to his advantage Self-interestallowing him to use his official power for evil purposes.
- Going forward, however, all former presidents will be protected by this immunity. If the holder of the office abuses official authority Self-interestthere is no backstop provided by the criminal laws that the rest of us must abide by.
as i was eraWhen politicians pursue the idea of the “public good,” they invariably gain personal gain from it – if nothing else, through electoral success. Presidents who succeed in achieving certain policy goals will reap benefits at the ballot box or in the polls. If by “personal benefit” Justice Sotomayor means the proverbial briefcase full of cash—a quid pro quo—then we’re leaning toward the bribery hypothesis. But I think all parties agree that bribery is not exempt. Therefore, the discussion of “personal interests” beyond the context of bribery needs to be further developed.
At this point, the majority correctly argued that the president, as the highest elected official, has the authority to decide what is in the common interest:
The president’s broad authority to speak on matters of public concern does not preclude him from communicating publicly about the fairness and integrity of federal elections simply because he is running for reelection. Cf. hawaii585 U.S., p. 701. public welfare.
Roberts is absolutely right. The buck stops here. I think those who serve in the executive branch understand this concept intrinsically. Justice Barrett, the only conservative appointee who has not served in a presidential administration, may have a point in refusing to fully agree with the majority opinion.
thirdJustice Sotomayor then turned to the theme of corruption. She exploits this concept to strong rhetorical effect. Sotomayor wrote:
- Under this rule, any use of official authority for any purpose, even The most corrupt purpose demonstrated by objective evidence most corrupt Motives and intentions, remain official and immune.
- Whether constructive or absolute, under majority rule, the President uses any official power for any purpose, even most corruptimmunity from prosecution.
Last week I noticed that the court real Don’t want to define corruption. Justice Sotomayor did not define it here. She simply assumes that readers will share her understanding of the concept. As a legal matter, if the conduct is immune, then the motive is irrelevant. Will Judge Sotomayor investigate an officer’s motives to determine immunity? This is certainly not how immunoassays are performed in other contexts.
Moreover, Sotomayor’s views once again harkened back to Trump’s first impeachment. Tillman and I wrote in December 2019:
However, impeachment for “abuse of power” based solely on “corrupt” intentions does not make presidents aware of what is expected of them. There is an almost infinite range of behaviors that can fall into this category. The House report explains: “[t]There are at least as many ways to abuse power as there are powers given to the president.
There is nothing new under the sun. During his first impeachment, Trump was accused of abusing his power for personal gain with corrupt motives. Justice Sotomayor’s dissent Trump v. United States Immunity will be denied when an official repeatedly abuses his or her power for corrupt motives. While the former charge may be appropriate in a quasi-political impeachment context, the latter charge does not belong in federal court. Even though I struggle with the Sheik’s view on a fundamentalist basis, from a pragmatic perspective it is solid.
