[StewardMcOy]

Except that impeachment requires acts of Congress. The SC opinion was explicitly clear that the president is immune from prosecution for ever issuing a pardon. So the president could order the military to capture or kill any representative or senator likely to vote for impeachment, and pardon everyone involved. There would be no remedy through the courts, because those who carried it out were pardoned, and the ruling also makes it explicitly clear that ordering the military to do something illegal is also an official act, so the president is immune from prosecution.

So a president determined enough to prevent impeachment could avoid it as long as he or she were able to find a large enough group within the military willing to go along with it.

[legitster]

> and the ruling also makes it explicitly clear that ordering the military to do something illegal is also an official act

Can you point to this in the ruling? They made it clear that hypothetical discussions with military personal are not evidence of lack of immunity, but the actual acts performed as president are not automatically granted such immunity.

> So a president determined enough to prevent impeachment could avoid it as long as he or she were able to find a large enough group within the military willing to go along with it.

The problem I have with this logic - if the president can get a large enough group of the military to go along with a Junta takeover, it doesn't really matter at all what the court or prosecutors think anyway.

[StewardMcOy]

> Can you point to this in the ruling? They made it clear that hypothetical discussions with military personal are not evidence of lack of immunity, but the actual acts performed as president are not automatically granted such immunity.

So it's a bit less explicit than I remember from my first scan-through. What I was remembering was from one of the dissents, which reads:

> 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 a military coup to hold onto power? Immune.

Barrett's concurring opinion touches on the idea that the president is immune from prosecution when ordering the military or police to kill, but only to show that the bar to presidential prosecution has historically been high.

As for the opinion itself, I believe the most relevant line is

> At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.

As far as core constitutional powers go, it doesn't get much more core than

> The President shall be Commander in Chief of the Army and Navy of the United States

It's even in the same section as the president's power to pardon.

Combined with the opinion, the president cannot be prosecuted for ordering the army or navy, no matter what those orders are.

> The problem I have with this logic - if the president can get a large enough group of the military to go along with a Junta takeover, it doesn't really matter at all what the court or prosecutors think anyway.

This is a practical matter rather than a legal one, and I should have kept to legal matters in my other reply. After all, a strong nation requires a strong legal system. What I was replying to was the idea that the only check remaining on the president's core constitutional power is impeachment. However, this ruling makes it legal for the president to bypass impeachment through the military. So as a legal, not practical matter, impeachment is now severely weakened.

By as a practical matter, I don't think you need a very large group within the military at all to take out 6 (or 9, if you want to go that far) supreme court justices, and threaten one or two senators so you can railroad your preferred replacements in.

[legitster]

FWIW, I'm getting a different read on the decision.

> The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.

Military actions against US citizens probably doesn't get the protection as a responsibility of the Executive Branch because it would neither be a national defense action nor a criminal justice one (in which case you would violate due process).

This argument is somewhat tested by the Obama administration's push for extra-judicial killings: https://www.theguardian.com/commentisfree/2013/feb/22/obama-...

[StewardMcOy]

> The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution.

Yes, this is true. However, the ruling very explicitly separates "core constitutional powers" from the rest of the president's constitutional responsibilities. There's basically 3 categories of action here.

1. "Core constitutional powers" 2. "His remaining official actions" 3. "unofficial acts"

OK, so I separated it out to 3 categories where the Court recognizes 2: official and unofficial. But I did so to point out that the Court ruled that "core constitutional powers" are always official acts, and it's up to the prosecution to prove that the act was unofficial, which thus means proving it wasn't a "core constitutional power."

And commanding the army to do something is a core constitutional power. The constitution is silent on what the president may not order the army to do.

This is how I read it, and I could be mistaken, but it's also how Sotomayor reads it, and she's a much sharper legal mind than I. Even if I'm wrong, it's frightening to be in a situation where top legal minds can interpret it this way. It means it's far from explicit, or safe.

As for the Guardian article, I'm not seeing where this has been tested in court. The article even mentions that the SC doesn't consider killing non-US citizens by the government to be forbidden by the constitution. Fair enough. Couldn't fight wars otherwise. But even if we assume they would rule extra-judicial killings of US citizens illegal, we're left with.

1. It's illegal for the president to kill a US citizen 2. But it's not illegal for them to order the military to do it (core constitutional power) 3. It's illegal for the military to carry it out 4. But the president can pardon them 5. And it's not illegal for the president to pardon them (core constitutional power) 6. Only federal laws apply if it's done in D.C.

As I read it, simply ordering the military to do something makes it an official act. But should it come to trial, Biden could argue that he was doing it to defend the constitution from those trying to undermine it. That he wasn't merely justified, but required to do so, and thus, it was a legitimate order to give, and thus a core constitutional power. Trump could claim the same: He was doing it to protect the constitution from the deep state which is illegally changing the vote totals.

[ahmeneeroe-v2]

A wildly-rogue president executing a military coup has always been in the cards. Do you honestly think that such a thing was not possible until just now when this decision was issued?

[StewardMcOy]

Possible? It's always absolutely been possible, but I've considered it much less likely than I do after this ruling.

As we saw during the first trump administration, the army was unwilling to go along with his every desire. A general even apologized for getting pulled into a photo op.

The US military is large and geographically diverse. I suspect that most would not carry out such an order. But you don't need most. You only need enough.

The problem for a theoretical coup group has always been what happens afterwards. Even if they were carrying out official orders from the president, you still potentially had to face the judiciary. The rest of the military might not come after you if the president orders them to stand down, but that still left the police open as an option.

The SC has now ruled that's not an issue.

I do understand a lot of the logic that the executive couldn't function if every action was litigated. But I look at other countries, such as the UK, where the prime minister in fact can be jailed for crimes, and I don't see it really being an issue. Seems better to me if no one is strictly above the law. Post WW2, we recognize that the military can issue and carry out illegal orders. We should extend that to the presidency.

The SC has essentially handed Biden a loaded gun. If I were him, I'd point it at the SC and fire, then point it at congress and appoint a new court that will take the loaded gun away from him. Because if Trump wins in November, you can be sure he will attempt to fire it.

[ahmeneeroe-v2]

While this is a well-organized and clearly-communicated comment, I believe the actual content is just hysterical fear-mongering.

A president has always had the "military coup" option. In fact, Putin also has the "violent overthrow of the US government" option (though he would probably use his own military).

[StewardMcOy]

While I freely admit I am frightened by the possible impacts of this ruling, I do not believe that it has, in this case, impaired my ability to look at the situation logically.

That said, as I mentioned in a different reply, I should have stuck to the legal implications around impeachment, rather than the practical. This decision states that the only remedy for a president breaking some laws is impeachment. At the same time, it says the president now has a legal, if not entirely reliable, means to avoid impeachment: Order the military to kill those who would impeach them.

Yes, that was always a theoretically practical option, but now it's also a legal option, and that's bad. A strong nation requires a strong legal system.