[ensignavenger]

How do you conclude that? It is my understanding that the Nixon tapes were recordings of conversations Nixon had with campaign staff as a candidate, and as the Supreme Court held, actions taken as a candidate are not official actions and are therefore not subject to immunity.

[csb6]

If this ruling would have been in force back then, Nixon could have argued that the conversations were done in his official role as president. For example, a conversation with his chief of staff about ordering the CIA perform a coverup could be considered “official business” since he was talking to a top executive branch official and directing an executive branch agency to take an action.

The distinction between “official” and “unofficial” becomes meaningless when a president can use their official powers to do illegal things that benefit themselves in an unofficial capacity. Hence the absurd conclusion that, apparently, a president cannot be prosecuted for assassinating their opponent using Seal Team 6.

[ensignavenger]

A argument could be made for that, the counter argument would be that ordering the White House Chief of Staff to lie to investigators is a very different act to ordering the AG to investigate a purported crime. The majority opinion was pretty careful to examine the exact nature of the conversation with the AG, leaving it open that not any conversation could have been claimed as official.

[rayiner]

> The distinction between “official” and “unofficial” becomes meaningless when a president can use their official powers to do illegal things that benefit themselves in an unofficial capacity.

Maybe, but does it follow that there's no protection for "official acts?" Go read some criminal statutes, and see what it would take for a creative red state prosecutor to pin something on Obama for ordering drone strikes killing American citizens. Or do you think Biden couldn't be charged with something in connection with his border policies?

[monetus]

Nixon still had the presidency as he ran for reelection, allowing for the argument that tapes of anyone under the Whitehouse's employ were inadmissible official acts.

[torstenvl]

Immunity is not admissibility. They are orthogonal.

Law enforcement has qualified immunity for the vast majority of what they do in an official capacity. That doesn't mean their testimony about what they do in an official capacity is inadmissible, including if they testify about what other law enforcement officers did.

[monetus]

The problem is that official conduct is inadmissible as evidence for even an unofficial crime, from what I understand. On that point, Barrett and the other women justices dissented from the majority, with "official acts" being a nebulous term.

[torstenvl]

No. I think you're referring perhaps to executive privilege, which is something else altogether. While it is an issue to account for, saying official acts are inadmissible is far too broad.

[monetus]

Can you expand on this comment?

https://news.ycombinator.com/item?id=40848910

- More precisely, not conduct but official records, even public ones like tweets, are inadmissible right? Forgive me for not looking more, I am cooking at the moment. The layman's understanding seems to be that executive privilege has been expanded.

EDIT: Having read the scoutsblog article and some of the opinions themselves, the justices seem to severely disagree over this.

[ensignavenger]

The court remanded that part back to the lower courts, to determine if Trumps Tweets were in his official capacity or not. There is a good chance that whatever the lower courts decide will be appealed back to the Supreme Court again.

[torstenvl]

Interesting and... odd.

First, that comment references something from "the ruling" which is not part of the Court's opinion, but from the syllabus, citing pages 30-32.

> But [the Government] nevertheless contends that a jury could “consider” evidence concerning the President’s official acts “for limited and specified purposes,” and that such evidence would “be admissible to prove, for example, [Trump’s] knowledge or notice of the falsity of his election-fraud claims.” Id., at 46, 48. That proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge. But “[t]he Constitution deals with substance, not shadows.” Cummings v. Missouri, 4 Wall. 277, 325 (1867). And the Government’s position is untenable in light of the separation of powers principles we have outlined.

> If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated. Fitzgerald, 457 U. S., at 756. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted. See Clinton, 520 U. S., at 694, n. 19.

> The Government asserts that these weighty concerns can be managed by the District Court through the use of “evidentiary rulings” and “jury instructions.” Brief for United States 46. But such tools are unlikely to protect adequately the President’s constitutional prerogatives. Presidential acts frequently deal with “matters likely to ‘arouse the most intense feelings.’ ” Fitzgerald, 457 U. S., at 752 (quoting Pierson, 386 U. S., at 554). Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office.

You're right that this goes beyond executive privilege. I was mistaken. However, it still does not say official acts are inadmissible. It says official acts may be inadmissible against him if they constitute "official conduct for which the President is immune." This is an important distinction because "of course not all of the President’s official acts fall within his 'conclusive and preclusive' authority [and] [t]he reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive authority therefore do not extend to conduct in areas where his authority is shared with Congress."

That is to say, there are official acts the President may take that are not in his exclusive authority. Immunity in such cases is not absolute; official acts in domains where power is shared may or may not be "official conduct for which the President is immune," and, if not, they would still be admissible against him.

[ethbr1]

If it gets interpreted more clearly this way in subsequent Supreme Court decisions (because there will definitely be 1+), then I like the ruling.

To me, it's clear that there's {President-the-President} and {President-the-candidate}. Furthermore, campaign staff are explicitly not federal employees nor members of the executive branch.

What really needs to happen, and I believe what the Court was promoting the legislative branch to do, is for Congress to pass laws circumscribing Presidential authority specifically around elections.

In the form of can-do and can't-do.